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Smt. Saida Begam Vs. Sabir Ali - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberAppln. Nos. 112 and 178 of 1955
Judge
Reported inAIR1962All9
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 115 - Order 21, Rules 58 and 63
AppellantSmt. Saida Begam
RespondentSabir Ali
Appellant AdvocateShafiqur Rahman and ;Hamid Ali Siddiqui, Advs.
Respondent AdvocateMohd. Husain, Adv.
DispositionRevision allowed
Excerpt:
.....bad. - 58. (1) where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit: - where upon the said investigation the court is satisfied that for the reason stated in the claim or objection such property was not, when attached in the possession of the judgment-debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in possession of the judgment-debtor at such time, it was so in his possession,..........(1) where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit:- provided that no such investigation shall be made where the court considers that the claim or objection was designedly or unnecessarily delayed.' rule 59 of order xxi of the code of civil procedure provides that the claimant or the objector under rule 58 must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached......
Judgment:
ORDER

R.A. Misra, J.

1. The points raised for decision in both these revision petitions are the same. It will, therefore, be convenient to dispose of them by one judgment.

2. Smt. Saida Begam, wife of Sri Hamid Ali Siddiki, Advocate, Bara Banki, applicant, obtained two decrees against her former husband Thakur Mohammad Umar, Taluqdar of Tipreha estate. One was a decree for her maintenance and the other for her dower debt, due from Thakur Mohammad Umar. Thakur Mohammad Umar died on the 13th October, 1949, and according to the decree-holder, superintendence of the estate of Tipreha, as also of the other assets of the deceased Thakur Mohammad Umar, was assumed by the Deputy Commissioner, Bahraich, as Manager, Court of Wards.

3. Smt. Saida Begam applied for execution of her decrees.

4. In execution application No. 11 of 1953, which related to her maintenance decree, she got attached a sum of Rs. 13,682/7/- from the- possession of the Deputy Commissioner, Bahraich, out of the assets of the deceased Thakur Mohammad Umar. The opposite party Sabir Ali filed an objection to the attachment which was registered as Miscellaneous Case No. 72 of 1953. The objection petition is a lengthy document and the substance of the objections raised by the opposite-party is that the decree for maintenance was obtained by Smt. Saida Begam collusively that the attachment was fraudulent and was based on misrepresentation of facts, that the objector was the owner of the Tipreha estate and all its assets because his claim in respect of them was dismissed by the trial Court but was eventually decreed by the High Court on 22nd February, 1954, and that the Deputy Commissioner, Bahraich, was holding the Tipreha estate and all its assets as a receiver appointed by the High Court for the benefit of the objector.

It was: also urged that the execution application had been filed without bringing the proper legal representatives of the deceased Thakur Mohammad Umar on the record and as such it was bad. The objection mentioned several provisions of the Code of Civil Procedure, e. g., Section 47, Section 144, Section 151 and Order XXI, Rule 58 of the Code of Civil Procedure, under which it was filed and prayers were also made which could appropriately be granted under each, of the above provisions. However, at this stage we are only concerned with the prayer under Order XXI, Rule 58, C. P. C., for the release of the attached amount.

5. Another execution application (No. 24 of 1954) was filed by Smt. Saida Begam on the 25th September, 1954, to recover her dower debt and in this decree she got attached Rs. 7,919/6/- again from the Deputy Commissioner, Bahraich. This attachment was effected on 13th November, 1954, and this amount was also attached out of the big sum of money which was with the Deputy Commissioner and out of which Rs. 13,682/7/- had been attached in Execution Case No. 24 of 1954. Shri Sabir Ali filed an objection in this execution case also.

This was registered as Miscellaneous Case No. 81 of 1954 and purported to have been filed under Section 47 and Order XXI, Rule 58 of the Code of Civil Procedure. In this objection it was prayed that the execution case be dismissed and that till the decision of the objection, the Proceedings in the case be stayed.

6. The learned Civil Judge, Bahraich, who was executing the above mentioned decrees, and, who heard the two objections, disposed of them, as also one other objection, with which we are not concerned here by one common judgment. He held that the money attached in both these execution applications was not liable to attachment and he, therefore, vacated the attachment.

7. Aggrieved by the judgment passed by the learned Civil Judge, the applicant Smt. Saida Begam has come up in revision to this Court. Revision Petition No. 112 of 1955 arises out of Execution Case No. 11 of 1953 and the connected Miscellaneous Case No. 72 of 1953. The other revision, i.e., No. 178 of 1955, relates to Execution Case No. 24 of 1954 and the connected Miscellaneous Case No. 81 of 1954.

8. Having heard the learned counsel for the parties, I am of opinion that the learned Civil Judge acted without jurisdiction in vacating the order of attachment in both the execution cases (No. 11 of 1953 and No. 24 of 1954) and his order should be set aside.

9. As appears from the facts stated above, the learned Civil Judge vacated the order of attachment on the objections filed by the opposite party, treating them to be, under Order XXI, Rule 58, C. P. C. The relevant part of Order XXI, Rule 58, C. P. C. reads:-

'58. (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit:- Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed.'

Rule 59 of Order XXI of the Code of Civil Procedure provides that the claimant or the objector under Rule 58 must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached. Rules 60 and 6l of the same Order read as follows :-

'Rule 60. Release of property from attachment:- Where upon the said investigation the Court is satisfied that for the reason stated in the claim or objection such property was not, when attached in the possession of the judgment-debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in possession of the judgment-debtor at such time, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the Court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment.

'Rule 61. Disallowance of claim to Property attached: Where the Court is satisfied that the property was, at the time it was attached, in the possession of the judgment-debtor as his own property and not on account of any other person, or was in the possession of some other person in trust for him,

'or in the occupancy' of a tenant or other person paying rent to him, the Court shall disallow the claim.'

On reading the above-noted rules it is, therefore, abundantly clear that a claim or an objection under Order XXI Rule 58 C. P. C. can be allowed only if on evidence adduced by him, the claimant or objector can succeed in proving that he had an interest in, or was possessed of the attached property on the date of attachment. The emphasis throughout in these rules is on the elate of attachment and the claimant or objector must show his interest in or possession of the attached property on that date and not before or after in order to succeed.

10. Applying the above test to the facts of the present two cases, the objections filed by Sri Sabir Ali fail to satisfy its requirement and, therefore, his claim must be repelled.

11. In his objection (Civil Miscellaneous Application No. 72 of 1953) which was filed in Execution Case No. 11 of 1953, the objector has mentioned that his claim to Tipreha estate and its assets was decreed by the High Court on the 22nd February, 1954. The amount of Rs. 13,682/7/-was attached on the 16th June, 1953. Thus, on the objector's own admission, the attachment had been effected nearly eight months before his suit was decreed by the High Court. Further the judgment of the High Court has not been filed in this case and there is no evidence to show that the amount of Rs. 13,682/7/- which was attached in this execution case was included in the claim which the objector has alleged, was decreed in his favour by the High Court on the 22nd February, 1954. Lastly, the objector's own witness O. W. 1 Ghulam Mohammad has stated that Rs. 37,000/-were recovered by the Deputy Commissioner from the safe when Thakur Mohammad Umar had died.

In the absence of any evidence to the contrary, it must, therefore, be held that the money recovered from the safe of Thakur Mohammad Umar was his personal property and was liable to satisfy his debts. Thus there is complete absence of evidence to prove that the objector had any interest in the amount of Rs. 13682/7/-, which was attached in satisfaction of the decree on 16th June, 1953. Admittedly, the objector was not in possession of this amount, as the same was attached from the possession of the Deputy Commissioner, Bahraich acting as the Manager, Court of Wards, for the Tipreha estate, as also of the assets of the deceased Thakur Mohammad Umar. The objector failed to satisfy the requirements of Order XXI, Rules 58, 59 and 60, C. P. C., and the attachment could not be vacated on his objection.

12. The order vacating the attachment of Rs. 13682/7/- in Execution Case No. 11 of 1953 is, therefore, set aside and the objection of the opposite party Sri Sabir Ali in Miscellaneous Case No. 72 of 1953 is dismissed.

13. The order of the learned Civil Judge passed in the other Execution Case No. 24 of 1954, allowing the objection of the opposite party in Civil Miscellaneous Case No. 81 of 1954 also cannot be sustained for two reasons. Firstly, because the learned Judge granted a relief to the opposite party which he never prayed for. As has already been mentioned in this case the objector had prayed that the execution case be dismissed. He did not seek the relief that the attached amount be released. In the objection petition, he has certainly alleged that the attached amount belongs to him but the relief prayed was confined to the dismissal of the execution application which could be done only under Section 47. C. P. C.

The learned Judge did not pursue any enquiry under that section nor did he give a finding in that behalf. Instead he ordered that the attachment be vacated. In my opinion, the relief granted by a Court must be in the terms of the prayer made. It is not open to a Court to grant a relief to a party entirely different from the one claimed or prayed for.

14. The order passed by the learned Judge is liable to be set aside for another reason also. In this case the attachment was effected after the objector's claim to Tipreha estate and its assets had been decreed by the High Court, as he says. But as mentioned above, the judgment of the High Court has not been filed and it is not known whether the money attached in this Case was included in the objector's claim which according to the objector was decreed in his favour.

Thus in this case also the objector failed to satisfy the requirements of Rules 58, 59 and 60 of Order XXI C. P. C. that he had any interest in or was in possession of the attached property on the date of attachment. For the reasons given above, I am of opinion that the order passed by the lower Court vacating the attachment of about Rs. 7,919/6/- in Execution Case No. 24 of 1954, was also without jurisdiction and that order must, therefore, be set aside.

15. Opposing the two revision petitions, it has been, contended on behalf of the opposite parties that the order passed by the learned Civil Judge does, not suffer from any defect of jurisdiction and it cannot, therefore, be revised under Section 115, C. P. C. Reference in this connection has been made, to the words of Section 115, C. P. C., as also to the decision reported in Keshardeo Chamria v. Radha Kissen Chamria : [1953]4SCR136 . I do not find any force in this argument. As held above; in; an objection or a claim made under Order XXI, Rule. 58, C. P. C. the Court is bound to enquire whether the claimant or the objector, had an interest in or was in possession of the attached property on the date of the attachment, as appears from the words of Order XXI, Rules 58, 59 and 60, C. P. C. And the Court can release the attached property only if, on evidence adduced by the claimant or the objector, it is proved that he had an interest in or was in possession of the attached property on that date.

The emphasis is on the date of the attachment and not the time either before or after that. In Miscellaneous Case No. 72 of 1953 connected with Execution Case No. 11 of 1953, the lower Court did not consider the case from this aspect at all. On the contrary, on facts it is not proved that the opposite party had any interest in or was possessed of the attached amount at any time, much less on the date of attachment. The lower Court, therefore, clearly exceeded its jurisdiction in releasing the attachment, or at least it exercised it illegally and with material irregularity and the case is clearly covered by Section 115, C. P. C.

16. In Civil Miscellaneous Case No. 81 of 1954 connected with Execution Case No. 24 of 1954, also the lower Court exceeded its jurisdiction in granting a relief, which was never prayed for and also because the attachment was ordered to be vacated without proof of the fact that the objector had an interest in or was in possession of the attached property on the date of attachment. The decision reported in : [1953]4SCR136 (supra) cited by the learned Counsel for the opposite party, therefore, has no application to the facts of any of the two revision, petitions.

17. Next it has been argued on behalf of the opposite party that this Court should not grant a remedy by revising the order under Section 115, C. P. C., because the applicant has an alternative remedy by a suit under Order XXI, Rule 63 C. P. C, According to the learned Counsel for the opposite party, where there is an alternative remedy, this Court should decline to interfere in revision. Chintamoni Sahu v. Jahuri Mal, AIR 1945 Pat 296 and Mt. Tulsi Dei v. Satruhan Singh : AIR1953Pat34 have been cited in support of this argument.

I have gone through these decisions and, in my opinion none of them supports the argument of the learned Counsel. There is, therefore, no force in this argument and I do not agree with the contention that the High Court should not exercise its revisional powers in appropriate cases, only because the aggrieved party has an alternative remedy by a suit.

18. Lastly, the revision petitions are opposed on the ground that the provisions of Order XXI, Rule 63 C. P. C. completely bar a revision under Section 115, C. P. C. Order XXI, Rule 63 reads:-

'63. Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.'

It has been argued that the words 'order shall be conclusive' mean that no revision or appeal lies against such, an order and it is final between the parties except in so far as it is varied by a suit under Order XXI, Rule 63, C. P. C.

19. The word 'conclusive' has not been defined in the C, P. C. and no other statute has been cited before me where this word might have been used in such a context In some other Acts as in Section 45 (5), U. P. Encumbered Estates Act, 1934, (Act No. XXV of 1934) and Section 5 (2), U. P. Agriculturists' Relief Act (Act No. XXVII of 1934) where in similar situations, it was intended to give the effect of finality to an order of a Court, the word used is 'final'. Looking to the dictionary meaning of the word ''conclusive' there appears to be essentially no difference in the meaning of the two words 'final' and 'conclusive'. Webster's Dictionary defines 'conclusive' as meaning 'settling the question', 'decisive', 'final'....'

The same dictionary defines 'final' as 'conclusive' 'decisive', 'last' 'determinative', 'as a final judgment' etc. Thus the two words 'final' and, 'conclusive' appear to be synonymous and they may be taken to bear the same meaning.

20. No decision has been cited before me supporting the argument of the opposite party that a revision against an order passed under Order XXI, Rule 58, C. P. C. is barred because of the provisions of Order XXI, Rule 63. C. P. C. However, the word 'final' as used in the two local statutes mentioned above, has been the subject of interpretation in some cases and those precedents may be accepted as a safe guide for judging the effect of the word 'conclusive' used in Order XXI, Rule 63, C. P. C.

21. Section 45 (5) of the U. P. Encumbered Estates Act lays down that 'the decision of an appeal under this section shall be final''. Repelling the contention that no revision under Section 115, C. P. C. lies to the High Court against an order passed in appeal under Section 45 of the U- P. Encumbered Estates Act a Bench of this Court in Ashraf v. L. Saith Mal : AIR1938All47 , observed thus:-

'It is urged that the appellate judgment of the learned Additional District Judge of Moradabad is not open to revision because it was final under the provisions of Sub-section (5) of Section 45. The question for determination is whether the use of the term 'final' results in this that our powers of revision are not to be exercised ......... I was evident that the word 'final'' as used in that section could only mean 'not subject to appeal'. It could not be final in: the sense that the power to interfere in revision was shut out ......... We consider that we have a right to interfere in revision under the provisions of Section 115 C. P. C.' In a Full Bench case reported in the same volume in Shah Chaturbhuj v. Shah Mauji Ram : AIR1938All456 , the question for decision was whether a revision under Section 115, C. P. C. could lie against an order passed by a subordinate Court under Section 5(2), U. P. Agriculturists' Relief Act. Section 5(2) of the U. P. Agriculturists' Relief Act is in the following words:-

'5 (2) If, on the application of the judgment-debtor, the Court refuses to grant instalments, or grants a number or period of instalments which the judgment-debtor considers inadequate, its order shall be appealable to the Court to which the Court passing the order is immediately subordinate, and the decision of the Appellate Court shall be final.' Holding that such a revision was quite competent in spite of the provisions of Section 5 (2), U. P. Encumbered Estates Act, the Full Bench observed:-

'By Clause (2) Section 5, a judgment-debtor is no doubt placed in a more favourable position than a decree-holder in the matter of appeal and a right of appeal is not given to a decree-holder against an order passed under Clause (1) of that section. But the mere denial to the decree-holder of a right of appeal cannot warrant the inference that the Legislature intended to bar the revisional jurisdiction of this Court. In the first place the remedy open to a litigant by means of an application in revision to this Court is a much narrower and restricted remedy than the remedy open to him by way of appeal. It follows that the mere fact that a right of appeal is denied to a litigant is no ground for holding that he is debarred from invoking the revisional jurisdiction of this Court. In the second place the jurisdiction of this Court to revise the orders passed by the Courts below is independent of a motion being made by a party to the case. This Court can of its own motion exercise its revisional jurisdiction even though no application has been made for the revision of the order passed by a subordinate Court. The fact that a right of appeal is not given to the decree-holder cannot therefore in any way affect the jurisdiction vested in this Court by Section 115, C. P. C.' The Full Bench approved the view expressed in the earlier decision reported in : AIR1938All47 (supra), where the effect of the word 'final' as used within Section 5 (2), U. P. Encumbered Estates Act, was interpreted. Expressing their own view, their Lordships in the Full Bench case held;- 'The provision, about the finality of the decision of the Appellate Court contained in Clause (2), Section 5 cannot therefore warrant the inference that the Legislature intended in any way to limit or control the revisional jurisdiction conferred on this Court by Section 115, Civil P. C.'

The last argument advanced on behalf of the opposite party also, therefore, in my opinion, has no force.

22. No other point has been pressed on behalf of the parties.

23. As a result, I set aside the order passed by the learned Civil Judge, Bahraich, dated 2nd May, 1955 vacating the attachment of the amounts in Execution Cases Nos. 11 of 1953 and 24 of 1954. The execution will proceed according to law. The two revision petitions Nos. 112 and 178 of 1955 are allowed with costs.


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