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Sanyasi Behera Vs. Onarasi Alias Varanasi Kantamma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberM.A. No. 50 of 1965 with C.R. No. 81 of 1965
Judge
Reported inAIR1969Ori16; 34(1968)CLT1246
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 - Order 1, Rule 10 - Order 21, Rules 58 and 63
AppellantSanyasi Behera
RespondentOnarasi Alias Varanasi Kantamma and ors.
Advocates:R.C. Misra, Adv.
DispositionAppeal dismissed
Cases ReferredB) & S. Viswanadham v. K. Basavayya
Excerpt:
.....1 to 3, the attachment was raised and, therefore, the suit under order 21, rule 63 was no longer maintainable. similarly law is well settled that an order on a claim petition filed under order 21, rule 58, or a decree in a suit filed under order 21 rule 63 does not extend beyond the execution of the decree which has given rise to those proceedings:.....22-12-62 t. s. no. 7 of 62 was decreed in favour of defendant 4 declaring his title over the suit property as against defendants 1 to 3 (ex. 3) and a decree (ex. 3/a) was passed to the same effect on 7-1-63. it is to be noted that originally satyabadi panda was a party to the suit. as during the pendency of the suit his claims were satisfied by defendants 1 to 3, the attachment was raised and his name was expunged. on 22-8-63 t. s. no. 44 of 62 was decreed ex parte for recovery of rs. 2260/- against defendants 1 to 3 and dismissed against defendant 4. in execution of his money decree, sanyasi (plaintiff) attached the disputed property. defendant 4 filed an application under order 21, rule 58 urging that he had purchased the property from defendants 1 to 3 under ex. 1 and that it.....
Judgment:

G.K. Misra, J.

1. Against one order both the miscellaneous appeal and the civil revision have been filed. It is the common case of the learned advocates that miscellaneous appeal lies and the civil revision does not lie. The civil Revision is accordingly dismissed.

2. The facts arising in this appeal may be stated in brief. On 58-12-58 defendants 1 and 2 and the husband of defendant 3 executed a registered sale deed (Ex. 1) in favour of defendant-4, the claimants under Order 21, Rule 58, C.P.C. One Satyabadi Panda attached the disputed property in E. P. 82 of 59 in execution of a decree against defendants 1 to 3. Defendant 4 filed an objection under Order 21, Rule 58, C.P.C. which was dismissed on 20-10-60. On 11-1-61 defendant 4 filed Title Suit No. 7 of 62 (T. S. No. 5 of 61 B. M.C.) under Order 21, Rule 63, C.P.C. as well as for declaration of title and for vacating the attachment effected by Satyabadi Panda. On. 9-8-61 defendants 1 to 3 executed an agreement for sale of the disputed house in favour of Sanyasi Behera. Sanyasi filed T. S. 44 of 62 on 14-8-62 making defendants 1 to 4 as parties.

On 22-12-62 T. S. No. 7 of 62 was decreed in favour of defendant 4 declaring his title over the suit property as against defendants 1 to 3 (Ex. 3) and a decree (Ex. 3/a) was passed to the same effect on 7-1-63. It is to be noted that originally Satyabadi Panda was a party to the suit. As during the pendency of the suit his claims were satisfied by defendants 1 to 3, the attachment was raised and his name was expunged. On 22-8-63 T. S. No. 44 of 62 was decreed ex parte for recovery of Rs. 2260/- against defendants 1 to 3 and dismissed against defendant 4. In execution of his money decree, Sanyasi (plaintiff) attached the disputed property. Defendant 4 filed an application under Order 21, Rule 58 urging that he had purchased the property from defendants 1 to 3 under Ex. 1 and that it was not liable to attachment and sale in execution oi the decree (Ex. A) of the plaintiff against defendants 1 to 3 in T. S. No. 44 of 62. The learned Subordinate Judge by his order dated 20-2-65 held that Ex. 1 was a sale and not a mortgage. Accordingly he upheld the objection of defendant 4. Against this order the miscellaneous appeal has been filed.

3. In support of the appeal Mr. Misra contended that Ex. 1 was a mortgage by conditional sale executed by defendants 1 to 3 in favour of defendant 4, and, as such, the equity of redemption was liable to attachment and sale in execution of Sanyasi's money decree. Mr. Rath on the other hand contended that Ex. 1 was a sale with a condition to repurchase and not a mortgage by conditional sale. He took up another point which was not urged in the Court below that by virtue of the judgment and decree (Exs. 3 and 3a), defendant 4's title to the property as against defendants 1 to 3 was declared on the basis that Ex. 1 was an out and out sale. Defendants 1 to 3 having no further interest, the disputed property was not liable to attachment on 6-1-64 in execution of the decree in favour of Sanyasi in T. S. No. 44 of 62.

It is conceded by the learned Advocates for both parties that if Mr. Rath succeeds in the second point, it would not be necessary to examine whether Ex. 1 is a sale or mortgage.

4. It is, therefore, necessary to examine whether by the date of attachment on 6-1-64 defendants 1 to 3 had any subsisting title or possession in the disputed property.

Mr. Misra contended that T. S. 7 of 62 was purely one under Order 21, Rule 63 and that when during the pendency of the suit the execution case of Satyabadi Panda was satisfied on payment by defendants 1 to 3, the attachment was raised and, therefore, the suit under Order 21, Rule 63 was no longer maintainable. The argument is too widely stated and suffers from a fallacy.

5. There is no dispute that in a suit under Order 21, Rule 63, the judgment-debtors are not necessary parties. But if in fact the judgment-debtors are made parties and the suit is disposed of in their presence, they are bound by the decision in the suit and the decision would constitute res judicata as against them in all subsequent litigations. If in T. S. 7 of 62 defendants 1 to 3 had taken an objection that the suit under Order 21, Rule 63 was no longer maintainable as the execution dues of Satyabadi Panda had been paid up and the attachment had been vacated, the trial Court would have examined the matter and might have dismissed the suit on the ground that there was no further cause of action. D. Ramkishan v. Mst. Alakh Kuer, AIR 1963 Pat 225 is one such case. Similarly law is well settled that an order on a claim petition filed under Order 21, Rule 58, or a decree in a suit filed under Order 21 Rule 63 does not extend beyond the execution of the decree which has given rise to those proceedings: See K. Narasimhachariar v. R. Padayachi, AIR 1945 Mad 333 (FB) & S. Viswanadham v. K. Basavayya, AIR 1959 Andh Pra 180. All these decisions cited by Mr. Misra are of no assistance to him in the present case.

T. S. 7 of 62 filed by defendant 4 was of a wider character. Though in that suit he could have merely challenged the order dismissing his claim petition under Order 21, Rule 58, he did not confine himself to a limited prayer. The suit was for declaration of title also. He made defendants 1 to 3 parties and further pursued that suit despite the fact that the original cause of action had disappeared namely, the attachment of the property was raised on payment of the decretal dues of Satyabadi Panda by defendants 1 to 3. If the suit was pursued for removal of the cloud on defendant 4's title based on the sale deed Ex. 1, it cannot be said to be not maintainable. The decree passed in such a suit is not a nullity as being without jurisdiction. Sanyasi has not also pleaded and proved in T. S. 44 of 62 that the decree was the outcome of fraud and collusion between defendant 4 on one hand and defendants 1 to 3 on the other.

The decree not being a nullity is binding on defendants 1 to 3. The effect of such a decree is that it was finally decided in that suit that Ex. 1 was a sale and defendant 4 had full title in the disputed property in which defendants 1 to 3 had no further right, title or interest. This being the position on 7-1-63, defendants 1 to 3 had no subsisting interest in the disputed property on 6-1-64, the date of attachment effected at the instance of plaintiff (Sanyasi). The objection of defendant 4 under Order 21, Rule 58 is bound to succeed on this ground. Though the learned Subordinate Judge did not deal with this aspect of the matter, his order can be affirmed on this ground.

6. On the aforesaid conclusion, it is not necessary to examine whether Ex. 1 is a sale or mortgage. In the result, the appeal fails and is dismissed; but in the circumstances, parties to bear their own costs throughout.


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