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Bhanwarlal JaIn Vs. Bherulal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 846 of 1979
Judge
Reported inAIR1982MP154
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 58 and 63; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72, 97 and 97(2)
AppellantBhanwarlal Jain
RespondentBherulal and anr.
Advocates:R.S. Garg, Adv.
DispositionRevision dismissed
Cases ReferredSyndicate Bank v. Rallies India Ltd.
Excerpt:
- - 8. the framers of the law do not appear to have made the aforesaid provisions retrospective in effect and since the aforesaid right vested in the objectors like the plaintiff, does not appear to have been taken away expressly or by necessary intendment, it has to be held that the remedy in the matter did not lay as provided by the aforesaid sub-rule (4). for the same reasons sub-rule (5) aforesaid also cannot govern the situation......commencement of the said section 72, or (ii) any suit instituted before such commencement under rule 63 aforesaid to establish right to attached property or under rule 103 aforesaid to establish possession, or (iii) any proceeding to set aside the sale of any immovable properly, and every such attachment, suit or proceeding shall be continued as if the said section 72 had not come into force;' from the aforesaid provisions, it is clear that so far as vested rights pertaining to attachment are concerned and which came into existence prior to feb. 1, 1977 and intended to be continued as such, the old law would hold the field. accordingly, it cannot be successfully contended that the rights and liabilities of the parties will be governed by the law on the point, as amended by section 72.....
Judgment:
ORDER

H.G. Mishra, J.

1. This is a revision by the defendant against the order dt. 4-9-1979, whereby the learned trial Judge has rejected his application for dismissing the suit brought by the non-applicant No. 1, Bherulal, under Order 21, Rule 63, C. P. C.

2. Facts material for decision of this revision are as under: Plaintiff-non-applicant No. 1 is owner of the suit house, which was attached on 10-8-1971, in execution of a decree obtained by the defendants against one Hari Durga; the number of the execution proceeding being 255/70-71. The plaintiff submitted objection under Order 21, Rule 58. CPC, which was dismissed on 23-11-1977. Thereafter the plaintiff brought the suit giving rise to this revision under Order 21, Rule 63, CPC on 23-11-1978, for declaration to the effect that since the house in question belongs to the plaintiff, it is neither attachable nor saleable in execution of the aforesaid decree.

3. In answer to the suit the defendant-applicant inter alia raised a contention to the effect that in view of the provisions of Order 21, Rule 58 (4), as amended by the CPC Amendment Act No. 104 of 1976, the suit is not maintainable. The defendant-applicant submitted an application for dismissal of the suit on the ground that in view of the provisions placed in Sub-rule (4) of Rule 58 of Order 21, CPC, the plaintiff ought to have preferred an appeal against the aforesaid order rejecting his objection and cannot maintain the suit. This application was opposed by the plaintiff and has been rejected by the learned trial Judge by the impugned order. Hence this revision.

4. In this revision it was contended by Shri R. S. Garg, learned counsel for the revision-applicant that the amendment brought about in the aforesaid rule by Section 72 of the aforesaid Amendment Act, read with its Section 97 (2) (q), the remedy of institution of the suit under Order 21, Rule 63, C. P. C. is not available to the plaintiff; more so, when it is not a case of refusal by the Court to entertain the objection preferred under the proviso to Sub-rule (1) of Rule 58 of Order 21, C. P. C. Reliance was placed on the ratio of Chuluram v. Bhagatram (1979 Jab LJ 730) : (AIR 1980 Madh Pra 16), Shesh Kumar v. Kesho (1980 Jab LJ 338) : (AIR 1980 Madh Pra 166) and Sitaram v. Chaturo (1981 Jab LJ 171). None appealed on behalf of the respondents to oppose the revision. Having heard the learned counsel for the applicants I have come to the conclusion that this revision deserves to be dismissed.

5. In this case attachment of the said house was effected on 10-8-1971. Accordingly, the right to object to the attach-ability and/or saleabilily of the property was born with its attachment. This right was exercisable during subsistence of the attachment. Of course, on coming to the conclusion that the claim or objection levelled against attachment was designedly or unnecessarily delayed, it may be open to the Court not to make investigation into the claim or objection preferred.

6. Now, the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding, as held per majority in Garikapati Veeraya v. N. Subbiah Choudhry (AIR 1957 SC 540). The right to file suit or an appeal is just as much of a vested right as any other. Accordingly, right to bring a suit as envisaged by Order 21, Rule 63, of the unamended Civil P. C. has to be regarded as a vested right inhering in the person objecting to the attachability of the property in question from the date when attachment thereof was effected. There is nothing in the provisions placed in Section 97 (which deals with Repeals and Savings) of the aforesaid Amendment Act, on the basis of which such right to institute a suit may be regarded to have been taken away either expressly or by necessary implication. The provisions placed in Section 97 (2) (q) read as under :

'Section 97. Repeal and savings.-- (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act, as amended by this Act, stand repealed.

(2) Notwithstanding that the provisions of this Act have come into force or the repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897,--

(a) ...........................

(q) the provisions of Rules 31, 32, 48A, 57 to 59, 90 and 97 to 103 of Order XXI of the First Schedule as amended or, as the case may be, substituted or inserted lay Section 72 of this Act shall not apply to or affect

(i) any attachment subsisting immediately before the commencement of the said Section 72, or

(ii) any suit instituted before such commencement under Rule 63 aforesaid to establish right to attached property or under Rule 103 aforesaid to establish possession, or

(iii) any proceeding to set aside the sale of any immovable properly, and every such attachment, suit or proceeding shall be continued as if the said Section 72 had not come into force;'

From the aforesaid provisions, it is clear that so far as vested rights pertaining to attachment are concerned and which came into existence prior to Feb. 1, 1977 and intended to be continued as such, the old law would hold the field. Accordingly, it cannot be successfully contended that the rights and liabilities of the parties will be governed by the law on the point, as amended by Section 72 of the Amendment Act.

7. As a logical corollary flowing from this position of law, it has to be held that the provisions placed in Sub-Rule (4) and (5) of Rule 58 of Order 21, have no application to the present situation. No doubt, Sub-rule (4) of Rule 58 of Order 21, CPC, as amended by the aforesaid Amendment Act, provides that where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree'. Further Sub-rule (5) of the aforesaid rule provides that 'where a claim or an objection is preferred and the Court, under the proviso to Sub-rule (1), refuses to entertain it, the party against whom such 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, an order So refusing to entertain the claim or objection shall be conclusive.

8. The framers of the law do not appear to have made the aforesaid provisions retrospective in effect and since the aforesaid right vested in the objectors like the plaintiff, does not appear to have been taken away expressly or by necessary intendment, it has to be held that the remedy in the matter did not lay as provided by the aforesaid Sub-rule (4). For the same reasons Sub-rule (5) aforesaid also cannot govern the situation. I am fortified in this view by the ratio of Syndicate Bank v. Rallies India Ltd., (AIR 1979 Delhi 40), which is to the following effect a

'The right to file a suit is a vested right which cannot be affected by subsequent legislation unless by express provision or necessary intendment that right is taken away. Section 97 of Act 104 of 1976 makes it clear that as far as the vested rights pertaining to attachments are concerned and which came into existence prior to Feb. 1, 1977, the old law would hold the field.

Where a claim petition was made before the Amending Act 104 of 1976, and was dismissed after the Act came into force, the remedy of the petitioner is only to file a suit under Order 21, R- 63 and not to file an appeal by resort to the new amended Rule 58 of Order 21.'

9. So far as reliance on the cases of Chuluram (AIR 1980 Madh Pra 16) (supra), Shesh Kumar (AIR 1980 Madh Pra 166) (supra) and the case of Sitaram (1981 Jab LJ 171) (supra) is concerned, it does not appear to be available in the facts and circumstances of the present 'case. Accordingly, those cases do not concern themselves with the construction of the provisions, which is involved in the case. Secondly, the ultimate ratio of those cases runs against the applicant, inasmuch as in each of those cases it has been held that right of appeal accrues and vests in the suitor at the time of institution of the proceedings in which the decree or order is passed, in accordance with the law then in force. On a parity of reasoning it has to be regarded that the right to institute a suit accrued due to attachment is inhering in the plaintiff due to continuation of attachment, Accordingly, the conclusion reached by the trial Court to the effect that the plaintiff has right to maintain the suit, appears to be correct.

10. In view of the discussion aforesaid, this revision fails and is hereby dismissed. Since no body appeared to oppose the revision, I make no order as to costs in this revision.


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