1. The 1st defendant is the appellant in this second appeal. The appeal arises out of a suit filed under Order 21, Rule 63, of the Civil P. C., which has been filed by the plaintiff-decree-holder against whom an adverse order was passed, on a claim filed by the 1st defendant. The suit was dismissed in the trial Court, but on appeal it was decreed against the 1st defendant and hence this appeal.
2. The suit property comprises two lots, specified in the plaint covering an extent of .010 acres which admittedly belonged to one Kinu Sahu. Defendant 1 is his daughter. D. 2 according to the plaintiff is the adopted son of Kinu Sahu and D. 3 is the son of D. 2. Kinu Sahu appears to have died sometime long prior to 1919. D. 2 borrowed a sum of Rs. 90/- from the plaintiff on a mortgage of certain property, other than the suit property, admittedly belonging to Kinu Sahu. The mortgage is Ex. 1 dated 5-5-1919. The palintiff filed subsequently a suit on that mortgage, obtained a decree, brought the properties to sale and realised thereby a portion only of the amount due. For the balance of the amount, he applied for and obtained a personal decree on 23-4-38. During the pendency of the application for personal decree, the plaintiff obtained an attachment before judgment of lot No. 1 out of the suit properties on 14-1-38
Shortly thereafter, Suna Bewa, widow of Kinu Sahu filed a suit for declaration of her title to lot No. 1 on the ground that the second defendant was not the adopted son of her husband Kinu Sahu. That was decreed Ex parte on 21-5-38. After obtaining the personal decree, the plaintiff proceeded to realise the same in execution case No. 354 of 1940. Thereupon Suna Bewa filed a claim proceeding. Misc. case No. 69 of 1941 objecting to the sale of this lot No. I of the suit properties. That claim was allowed on 22-1-41. Thereafter she died. Plaintiff filed another execution application which is execution proceeding No. 67 / 44 against defendants 2 and 3 wherein he sought to bring up for sale lot No. I which was the subject-matter of previous claim, proceedings as also a fresh item lot No. 2. Defendant 1 intervened with a claim which gave rise to Misc. case No. 136/44. Her claim was on the footing that the alleged adoption of the second defendant was not, true as a fact and that the properties which originally belonged to late Kinu Sahu devolved on her on the death of her mother, Suna Bewa. The claim was allowed and hence the plaintiff has filed the present suit.
3. The plaintiff's case is that the second defendant is in fact the adopted son of late Kinu Sahu and that the decree obtained by Sunna Bewa in O. S. 48/38 was collusive. The first defendant who is the contesting defendant maintains the contrary and also pleads that the present suit is barred by limitation in so far as the lot No. 1 is concerned and by res judicata in so far as lot No. II is concerned.
4. The question of the truth of adoption of the second defendant may be taken up first. The trial Court has held that the plaintiff has not succeeded in proving that D. 2 is the adopted son of Kinu Sahu. The lower appellate Court has however come to a different conclusion. This is a finding on a question of fact which is binding on us in second, appeal. (After referring to the evidence on record, their Lordships continued.) On this evidence, the learned appellate Judge was perfectly justified in coming to the conclusion that the plaintiff has made out the adoption of the second defendant to Kinu Sahu and that the ex parte decree in O. S. 48/38 is collusive.
5. As regards the question of law raised, the point relating to res judicata may be shortly disposed of. This point relates only to lot No. II of the plaint and is based on the assumption that the claim order, dated 24-4-41, has become conclusive between the parties by the bar of limitation, a point which, will be dealt with presently. Assuming for the present purpose that that order has become conclusive, the argument is that it amounts to an implied adjudication that the adoption set up by the plaintiff is not true. It is urged that this finding as to adoption is conclusive between the parties for all purposes. This argument is clearly untenable. In the first place, it is well-settled that the effect of an order under Order 21, Rule 63 is conclusive only as regards the particular property in dispute and not with reference to any of the grounds on which the said order has been passed. This has been laid down long ago by the Privy Council in 'RADHA PROSAD SINGH V. LAL SAHIB RAI, 13 All 53, (PC), which has been followed in 'DINKAR BALLAL v. HARI SHRIDHAR', 14 Bom 206 and 'AS-NA BIBI v. JAIGUNNISSA BIBI, 44 Cal 698. Further the claim order Ex. C shows that the claim has been upheld not on any finding against the adoption, but on the ground that the Khasmahal patta shows the claimant to be the owner. There is therefore no substance at all in this point.
6. On the above conclusions therefore the appeal is bound to fail as regards lot No. II of the plaint.
7. The next question for consideration is whether the plaintiff-decree-holder is debarred from bringing lot No. 1 of the plaint to sale on account of the previous adverse order dated 22-1-41 against him relating to this property in Misc. Case No. 59 / 41 allowing the claim filed by the appellant's mother, late Suna Bewa. The appellant's contention is that by virtue of Order 21, Rule 63 that order has become conclusive against the plaintiff in respect of this item of property since admittedly no suit was filed by him within one year of that order challenging the correctness of the same. The respondent contends that the limitation applicable is six years under Article 120 of the Limitation Act, while the appellant contends that it is one year under Article 11. The trial Court accepted the appellant's contention while the lower appellate Court upheld the respondent's . contention, and the question is which view is correct.
8. At the outset of this discussion, it may be mentioned that there is no dispute that Order 21, Rule 63 applies to such a case. No doubt; Order 38, Rule 8 merely says :
'Where any claim is preferred to property attached before judgment, such claim shall be investigated in the manner hereinbefore provided for the investigation of claims to property attached in execution of a decree for the payment of money.'
There was, at one time, a doubt raised, in the reported cases whether this provision attracted only Rules 58 to 62 of Order 21, which related to investigation, or Rule 63 thereof also which relates to the effect of the order made on such investigation. It has now been settled in all High Courts that Rule 63 also applies to attachments before judgment. See 'KISSORIMOHUN ROY v. HARSUKH DAS', 17 Cal. 436 (P C.) 'MALIKHARJUNA PRASAD NAIDU v. VIRAYYA', 41 Mad '849; 'BISHESHARDAS V. AMBIKA PERSHAD', 37 All 575; 'CHETTIAR M. S. M. M. FIRM v. MONGSEIN', 9 Rang 561, 'MX BABBAL KUMARI JAYASHWALIN v. MITLCHAND MARWARI', AIR 1934 Pat 580. There can also be no doubt that where the attachment has been made in execution and not before judgment, the Article applicable is Article 11 But it is argued for the respondents that the wording of the said Article does not in terms apply where the attachment is made before judgment and that therefore the residuary Article 120 providing six year's period of limitation must apply.
9. The relevant portion of Article 11 may be read as follows :
Description of suit.
A suit by a person against an order under the Code of Civil Procedure on a claim preferred to, or on an objection made to the attachment of, property attached in execution of a decree, to establish the right which he claims to the property comprised in the order.
Period of Limitation.
One year from the date of the order.
It is said that this article applies only when the property in question has been 'attached in execution of a decree' and not when it has been 'attached before judgment.' On the other hand, the argument for the appellant is that attachment before judgment is, in its legal effect, an attachment in execution by virtue of the provisions of Order 38, Rule 11, once an application for execution ay way of sale of the property attached has been made and that therefore the article applies. The case in 'ARUNACHALAM v. PERIASAMI', 44 Mad 902 (FB) is cited in support of this contention. The view adopted in that case unanimously by all the five Judges composing the Bench was that Article 11 applies to such a case; and if this view is correct, the appellant is entitled to succeed in respect of this item of property. The lower appellate Court thought that the law was laid down differently in 'DHAN BIBI v. MRINALINI GHOSH', AIR 1945 Cal 449 and 'BABBALKUMARI v. MULCHAND', AIR 1934 Pat 580, which he felt bound to follow : AIR 1945 Cal 449, however, when examined, is seen to be a case where the claim objection to the attachment and the order thereon, were made before the decree itself in the suit was passed and obviously, therefore, there was no scope for the application of the principle said to be underlying in Order 38, Rule 11. In 'AIR 1934 Pat 580', it is not clear whether the claim and the order was made before the decree in the suit was passed, but this may have been so since the learned Judges rely on '44 Mad 902.' These cases may therefore be distinguished and I agree with them. No other reported decision directly dealing with the applicability of Article 11 to a case like the present one has been brought to our notice except 'GOPAL BALKRISHNA v. AMBIT WAMAN', AIR 1929 Nag 128, which simply follows '44 Mad 902,'
10. The phrase 'attached in execution of a decree' is one that appears not only in Article 11 of the Limitation Act, but also in certain provisions of the Civil Procedure Code. It is undisputed that the phrase has to be construed in the same way in both these allied enactments. Under Section 63 of the Civil Procedure Code :
''Where 'property'' not in the custody of any Court is 'under attachment in execution of decrees' of more Courts than one, the Court which shall receive or realise such 'property' and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.'
Under the corresponding provision of the prior Code of 1882, namely, Section 285, the wording was slightly different, but the same in substance. That section is worded as follows:
'Where property not in the custody of any Court has been attached in execution of decrees of more Courts than one, etc.'
The question has arisen whether this section is applicable where there are two rival decree-holders both proceeding by way of execution in different Courts, one of whom has obtained attachment before judgment and the other after judgment. It has been held that it does. See BHUGWAN CHUNDER v. CHUNDRA MALA' 29 Cal 773 ; 'RAMDHARILAL V. NATHU RAM',' AIR 1921 Pat 140 and 'DURPATI BIBI v. RAM RACHPAL', 31 All 527. It has been held in these cases that an attachment before judgment becomes operative as an attachment in execution when the application for execution in respect of that property is made.
11. The contrary view would not only introduce confusion in execution, which it is the purpose of Section 63 to obviate, but it would also deprive the decree-holder, who has obtained only attachment before judgment, of the benefit of Section 73 of the Civil P.C. (old Code Section 205), in a case where the assets have been realised by another Court in execution of another decree. That Section 73 would be applicable to the holder of a decree who obtained attachment before judgment on his filing an application for execution, has been held in 'PALLONJI SHAPURJI v. EDWARD VAUGHAN JORDAN', 12 Bom 400 and 'SEWDUT ROY v. SREE KANTO MAITY', 33 Cal 639.
12. Another provision of the Civil Procedure Code which contains the phrase 'attached in execution of a decree' is Order 21, Rule 57. Under that provision :
''Where any property has been attached in execution of a decree but by reason of the decree-holder's default the Court is unable to proceed further with the application for execution, it shall. either dismiss the application or for any sufficient, reason adjourn the proceedings to a future date. Upon the dismissal of such application the attachment) shall cease.'
This provision is new and is not in any of the Civil procedure Codes prior to 1908. A question has arisen whether this applies to attachment before judgment and it is on this point that there has been considerable difference of opinion. That difference of opinion is reflected in the judgments, of the Judges of the Madras High Court who by a majority in a Pull Bench decided that it does apply. See 'MEYYAPPA CHETTIAR v. CHIDAMBARAM CHETTIAR', 47 Mad 483.
13. In this decision, three of the Judges took the. above view while the two other Judges held the contrary view. In later cases in other High. Courts, where the same question arose, the same difference of view is reflected. The minority view has been followed in 'SHIBNATH SINGH v. SUBERUDDIN AHMED', AIR 1929 Cal 465;. following an earlier decision in GANESH CHANDRA v. BANWARI LAL', 16 Cal L J 86. A similar view has also been taken in 'AKHEY RAM v. BASANT LAL', AIR 1924 All 860. The majority view however has been accepted by Bombay, Nagpur, and Sind Courts. See 'ARDESHIR NUSSERWANJI v. USMAN GANI MEMON', AIR 1929 Bom 455 ; 'HARISABAJI v. SHRINIVASH VITHAL', AIR 1931 Bom 550; 'GANPATI v. MAHADEO'. AIR 1921 Nag 57 and 'PRIBHOMAL v. KISHNOMAL'. AIR 1941 Sind 13. The broad difference between the two views is as regards the effect of Order 38, Rule 11 of the Civil Procedure Code which is as follows :
'Where property is under attachment by virtue of the provisions of this Order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property.'
According to the Madras view of all the five Judges in 'ARUNACHALAM v. PERIASAMI', ILR 44 Mad 902 (FB) and of three of the Judges in 'MEYYAPPA CHETTIAR v. CHIDAMBARAM CHETTIAR'. 47 Mad 483, this provision implies that on an application for execution after decree, the attachment before judgment becomes operative as an attachment in execution, while according to the view taken in Calcutta and Allahabad cases above cited it means nothing more than what it says, namely, that there need be no further attachment in order that the property may be available for sale in execution. It may be noted that even in those Courts earlier cases have taken the contrary view. See 'BHUGWAN CHUNDER v. CHUNDRA MALA', 29 Cal 773; 'SEWDUT ROY v. SREE KANTO MAITY' 33 Cal 639; and 'DURPATI BIBI v. RAM RACHPAL', 31 All 527. I shall presently deal with this interpretation of Order 38, Rule 11. But apart from that, it appears to me that in the discussion of the phrase 'property attached in execution'' which occurs either in the Limitation Act or in the Civil Procedure Code, far too much importance has been attached to the time-factor of the process of attachment. The property which has been attached before judgment, and as against which execution is being sought after decree, can well be described as 'property attached in execution of a decree', because it is 'under attachment while execution against it is being levied.' This. is the view of Justice Coutts Trotter in AIR 1924-Mad 494 (PB) at p. 500, and appears also to be the view of Justice Spencer in AIR 1921 Mad 163 (FB) at p. 168. (Compare the wording of Section 285 Civil P.C., of 1882 and Section 63 of the present C.P.C., which have been held to apply also to 'attachment before judgment.')
14. To arrive at a proper construction of the effect of Order 38, Rule 11, it is necessary to consider the nature of 'attachment before judgment.' Such an attachment, when obtained, is primarily an interim provision for safeguarding the interests of the prospective decree-holder against any attempt by the prospective judgment-debtor to defeat or delay the execution of a decree that may be obtained. Its primary purpose at this stage is to obtain security. That is why the conditional order itself under Order 38, Rule 5, calls upon the defendant to furnish security or to show cause why security Should not be furnished. Under Rule 6 it is only when the security is not furnished that the attachment is ordered and if the security is furnished, there is either no attachment at all or any previous ex parte attachment is vacated. That this is the primary purpose at that stage is also emphasized by the provision in Rule 9 which makes it obligatory on the Court to withdraw the attachment, even after the attachment is made final under Rule 6, whenever security is furnished. It is somewhat noteworthy that under the corresponding provision in the Code of 1859, namely, Section 87 what is provided is only the removal of the attachment on furnishing security and not also on the dismissal of the suit, as in the corresponding provisions of later Codes. It is in these later Codes of 1877, 1882 and 1908 that a specific provision is made as to what is to happen when the suit terminates in a decree. Prior to the new provision it was open to argument that an attachment before judgment is a mere interlocutory order, which, like say an order of temporary injunction remains operative only during the pendency of the suit and falls to the ground with the termination of the suit. See 'RAM CHAND v. PITAM MAL', 10 All 506 at p. 511, referring to the case in 'CHUNNI KUAR V. DWARAKA PRASAD', 1887 All W N 237.
15. The later Codes enacted that (1) if the suit is dismissed, the attachment is to be withdrawn. (2) if the suit is decreed, a fresh attachment is not necessary. By these provisions therefore, it has been made clear -- what probably was the intention throughout -- that an attachment before judgment is not merely for the purpose of providing security for the prospective decree-holder, but is also in the nature of an anticipatory attachment to be available in execution in the contingency of the plaintiff obtaining a decree. The question then is whether there is any indication that when it becomes so available in execution, it is so available in a way different from an attachment made in execution. Obviously if it was intended that it is to be available in some different way, there would have been specific and elaborate provisions relating thereto. On the other hand, the legislature makes no provision at all as to how this attachment before judgment is to be availed of in execution, which definitely means and implies that, it is to be availed of in the same way as an attachment in execution would be for which provision has already been made previously in Order 21. I am therefore unable, with respect, to appreciate the reasoning of the learned Judges, who say that an attachment before judgment is by its nature different from an attachment in execution. That is no doubt so upto the stage when the plaintiff obtains a decree. But once he obtains a decree and puts his decreein execution in respect of the property so attached, I cannot see how it is logical to assume that at that stage the continuing attachment is anything different, from an attachment obtained in execution.
The learned Judges have criticised the view thatan attachment before judgment becomes an attachment in execution under Order 38, Rule 11, on theground that it is based upon some fanciful theoryof merger or conversion. But it appears to methat this is nothing more than a compendiousstatement that an attachment before judgment is, from that swage, in all itsincidents, in the same position as an attachment in execution. No doubt this has not beenexpressly stated in p. 38, Rule 11 which only saysthat re-attachment is not necessary, but is theobvious implication of it The actual provisionin Order 38, Rule 11 or the corresponding provision inthe previous Codes became necessary, because theview had been taken in some early decisions thata previous attachment in execution was a prerequisite of the sale by the Executing Court. See'MAHADEO DUBE V. BHOLA NATH', 5 All 86,'RAM CHAND v. PITAM MAL', 10 All 506 and8 W N 415, and also that an attachment beforejudgment cannot subserve the purpose of attachment in execution. See 'RADHAKRISTO PANJAHv. BAMASOONDUREE', 13 W R 9. The provision therefore that re-attachment is not necessaryis clearly meant to provide that an attachmentbefore judgment is to subserve the same purpose asan attachment in execution and is to be availedof in the same manner. It emphasises thecharacter of an attachment before judgment asbeing an anticipatory and contingent attachmentin execution, in addition to its being an interimmeasure of security, during the pendency of thesuit There is obviously no reason why such anattachment should be subject to different incidents in any respect from the moment it issought to be availed of in execution. ,
It appears to me therefore that the majority view as to the construction of Order 38, Rule 11 as rendering an attachment before judgment tantamount to an attachment in execution when an application for execution as against the very property attached is made, is sound and consistent with the scheme and the provisions of the Civil procedure Code.
16. A consideration of the provisions of the successive Civil Procedure Codes and Limitation Ac's relating to suits to contest claim orders and the period of limitation therefor also clearly indicates that there is no reason for any difference in the period of limitation, as regards the two kinds of attachment when the matter arises in execution stage.
It has been very clearly pointed out by Chief Justice Wallis in his judgment in 'ARUNACHA-LAM CHETTY v. PERTASAMI SERVAI', 44 Mad 902. that under the Code of 1859, the period of limitation for such suits was specifically covered by Section 246 and was the same one year in respect of both classes of attachments. When this portion in that section relating to limitation was taken out of it and provided for in the Limitation Act of 1871, it does not appear that any different periods of limitation were contemplated. It must have been assumed that both would be equally covered by the one year limitation provided under Article 15 of the said Act. This may not have been correct in view of the later decision of the privy Council in 'SHANKARSARUP v. MEGO MAL', 36 All 313 (PC). In the Limitation Act of 1877 it is beyond doubt that the period of limitation was the same one year in respect of both kinds of attachment under Article 11 thereof, which referredto orders under Section 280 of the then Civil Procedure Code which equally applied to both kinds of attachments. In the Limitation Act of 1908, Article 11 has been redrafted omitting reference to any section of the Civil Procedure Code as such, but mentioning the substance thereof. What the reason for this redrafting in different language was, has been explained in the judgment of Chief Justice Wallis in 44 Mad 902 and in the judgment of Justice Krishnan in the referring order in that case. I agree that it could not have been intended that in such a situation a different period of limitation would have been intended to apply for attachment made for the first time in execution and attachment before judgment which became operative in execution, defeating thereby the salutary object of the legislature in providing for speedy settlement of questions of title arising from claims in execution.
17. I am, therefore) clearly of opinion that Article 11 applies to suits arising out of claims made in the course of execution by reason of an attachment of property before judgment, both because the phrase 'property attached in execution' aptly applies to such a situation and also because Order 38, Rule 11, justifies a construction of that phrase as applicable to such an attachment at that stage. As already pointed out, 'ARUN ACHALAM CHETTY v. PERIASAMI SERVAI', 44 Mad 902, is the only direct case on the matter and there is no decided case to the contrary. I would follow the view in the said Pull Bench.
18. At this stage it may be mentioned that some argument has been suggested about the inapplicability of Article 11 to the facts of this case on the ground that the claim order in the present suit namely Ex. C shows that the claim was entertained not on the footing that it is an objection to the attachment, but on the footing that it is a claim to the property which is the subject-matter of the execution proceeding and that such a claim was maintainable in view of the Patna amendment of Order 21, Rule 58. But I do not see how Article 11 becomes thereby inapplicable. A claim may have been entertained as a claim to the property, but is still a claim preferred to 'property attached in execution of a decree' in terms of Article 11, if in law the attachment amounts to an attachment in execution though the objection may have been not to the attachment itself. I can therefore see no difficulty arising on this score.
19. On the view taken in 'ARUNACHALAM CHETTY v. PERIASAMI SERVAI', 44 Mad 902, that Article 11 would be applicable, at the latest, when an order for sale has been passed in execution proceedings, it was not clear on the record what was the stage to which the execution had proceeded in the present case by the time the claim under Ex, C was preferred. We. therefore, allowed the appellant to file a certified copy of the order-sheet in the prior execution proceeding as additional evidence in order to satisfy ourselves whether the present case is in any way distinguishable from that decision on the facts. The said certified copy is marked as Ex. G now in second appeal. A reference thereto clearly shows that by the Order No. 13, dated 21-1-1941, an order for sale had been passed and that the claim petition has been filed on 11-3-1943, vide Order No. 14. The case In '44 Mad 902', is therefore on all fours. It would follow that the suit of the plaintiff is barred so far as lot No. I of the plaint is concerned.
20. I may add that I am not to be understood as saying that an attachment before judgment is to be treated as an attachment in execution only when an order for sale has been passed. Itappears to me to be reasonable to say having regard to Order 38, Rule 11, that it is so when a valid application for execution has been duly made.
21. In the result the appeal must be allowed as regards lot No. I and dismissed as regards lot No. II. The suit will accordingly be decreed only in respect of lot No. II. In the circumstances neither party will have costs either here or in the lower appellate Court, but the plaintiff will be entitled to his costs in the suit.
22. I have perused the judgment of my learned brother and I am in entire agreement with him that the adoption of the second defendant to Kinu Sahu has been proved and that the ex parte decree obtained by Sana Bewa in Order S. 48 of 1938 is collusive. I regret, however, I am unable to agree with the rest of his judgment. The point for determination is whether the facts of this case are governed by Article 11 of the Limitation Act and whether the plaintiff's suit is liable to be dismissed as being barred by limitation.
23. Article 11 of the Limitation Act reads asfollows :
A suit :
'by a person against whom any of the following orders has been made to establish the right which he claims to the property comprised in the order:
(1) an order under the Code of Civil procedure, 1908, on a claim preferred to, or an objection made to, the attachment of property 'attached in execution of a decree'.'
24. The expression 'property attached in execution of a decree', in terms, does not apply to property attached before judgment, but judicial opinion has varied with regard to the interpretation of these words
25. Order 21 of the Civil Procedure Code deals with execution of decrees and orders. Rule 54 of that order prescribes the manner in which attachment of immovable property is to be effected. IN terms it applies to attachment in execution of decrees or orders as the order of attachment prohibits a 'judgment-debtor' from transferring or charging the property in any way. Rule 57 of the Order prescribes that upon the dismissal of the application for attachment, the attachment shall cease. This rule reads as under :
'Where any property has been attached 'in execution of a decree', but by reason of the decree-holder's default the Court is unable to proceed further with the application for execution it shall either dismiss the application or, for sufficient reasons, adjourn the proceedings to a future date. Upon the dismissal of such application the attachment shall cease.'
Then follow Rules 58 to 63 dealing with the procedure for 'investigation of Claims and Objections.' Rule 58 says :
'where any claim is preferred to or any objection is made to attachment of any property 'attached in execution of a decree', on the ground that such property is not liable to attachment, etc. etc....'
26. The language used in Rules 57, 58, 60 and 61 contemplates an attachment 'in execution of a decree' and is identical with the language used in Article 11 (1) of the Limitation Act. Order 38, Rule 5 of the Civil Procedure Code prescribes that the defendant in a suit may be called upon to furnish security for the amount of the decree that may be passed and to show cause why he should not furnish such security. Rule 6, Order 38, empowers the Court to order attachment if the defendant fails to show cause or to furnish security.Rules 7 and 8 deal respectively with the manner in which the attachment is to be effected and the investigation of any claim to property attached before judgment is to be made, and lay down that the procedure shall be the same as that prescribed for attachment and investigation of claims to property 'attached in execution of a decree.' Rule 11 lays down that it shall not be necessary to apply for re-attachment of the property when the plaintiff-decree-holder applies for execution. It is contended that since the procedure for attachment and the manner in which a claim is to be investigated, is the same whether the attachment is before or after the passing of a decree, Rule 63 of Order 21 would apply and a suit should be filed by the party against whom an order is made, to establish the right which he claims to the property in dispute. It is further contended that, if this proposition is accepted. Article 11 of the Limitation Act would necessarily apply to such a suit, whether the attachment was effected before or after the passing of a decree.
27. The first of these two propositions may be taken as well settled by authority. It is reasonable to presume that the Legislature intended that any dispute regarding title to properties, which are the subject-matter of attachment, should be expeditiously settled by a suit. Since no separate procedure is prescribed for dealing with claims made to property attached before judgment and as the procedure prescribed for investigation of claims arising in execution is made applicable to attachments under Order 38, the conclusiveness of the order subject to the result of a suit that may be filed, should be the same in both the cases. Rule 63 has, therefore, been held applicable to suits to establish claims made to properties attached either before or after execution. But that rule does not prescribe any rule of limitation. We have, therefore, to rely upon the language used in the Limitation Act for determining the period within which such a suit be filed.
28. Article 11 of the Limitation Act explicitly refers to 'attachments in execution of a decree.' Does it necessarily follow from the fact that Rule 63 applies to suits to establish claims in both cases that, for purposes of limitation also, attachment before judgment should stand on the same footing as an attachment in execution? According to the view of the Madras High Court, it does. According to the Calcutta, Allahabad and Patna High Courts it does not. Let me refer to a few reported decisions of the different High Courts.
29. In 'ARUNACHALAM CHETTY V. PERIASAMI SERVAI', 44 Mad 902 FB, Sir John Wallis, C. J., after reviewing the history of the provisions of the old Civil Procedure Codes of 1859 and 1877, held that as the same period of one year applied to a suit to establish claims to properties attached before or after a decree under the old Civil Procedure Code and the Limitation Acts, there was no apparent, reason to suppose that the Legislature intended to alter the law when Article 11 was introduced in the Limitation Act of 1908. His Lordship reluctantly came to the conclusion:
'We should not be justified in laying downgenerally that property attached before judgment is attached in execution of a decree 'withinthe meaning of Article 11'.'
But a claim put in after an order in execution for the sale of the attached property has been made, becomes a claim to property attached in execution of a decree, although the attachment had in fact been made before judgment, and Article 11 of the Limitation Act would apply. Spencer, J., who delivered aa separate judgment went even to the extent of laying down that when a decree is passed and an attempt is made to execute it what was an attachment before judgment becomes in fact an attachment in execution of a decree. Oldfield, Kumaraswami and Ramesam, JJ., merely expressed their agreement with the opinion of the learned Chief Justice.
30. In a later Full Bench case of the same High Court reported in 'MEYYAPPA CHETTIYAR v. CHIDAMBARAM CHETTIYAR', 47 Mad .483, the question for decision was whether an attachment before judgment would cease within the meaning of Order 21, Rule 57, upon the dismissal of a petition for execution. The Court by a majority of three to two held that the provisions of Order 21, Rule 57, applied to an attachment before judgment, which became converted into an attachment in execution as soon as an application is made to execute the decree passed in the suit. In giving their reasons for this view, however, the members constituting the majority were not unanimous. Coutts-Trotter, J., held that the mere filing of an application for execution would show that the decree-holder meant to execute the decree and on such an application being made by the decree-holder, the attachment before judgment becomes automatically an attachment in execution. Ramesam, J., observed that the effect of Order 38, Rule 11, is that :
'an attachment before judgment becomes an attachment in execution when it is definitely sought to be made available for execution,'
and that when the Court passes an order, after being satisfied that the requirements of Order 21, Rule 11 have been complied with, the attachment before judgment becomes 'converted' into one in execution. Waller, J. who also concurred in the majority view held that an attachment before judgment becomes an attachment in execution when an application for execution is made and admitted under Order 21, Rule 17. Schwabe C.J., and Wallace, J., on the other hand, relied on the case of 'VENKATASUBBIAH v. VENKATASESHA', 42 Mad 1 and 'GANESH CHANDRA v. BANWARILAL', 16 Cal L J 86 and expressed their disagreement with the above view Of the majority. The former case purported to follow the Calcutta case and two other decisions of that Court reported in 'BAVUDDIN SAHIB v. ARUNACHALA MUDALI', 26 Mad L J 215 and in 'KOSURI SURAPARAJU v. M. NARASIMHAM', 26 Ind Cas 81 (Mad). According to that decision an attachment before judgment is not affected by the dismissal of an application under Order 21, Rule 57. If the majority view were to be accepted, Rule 57 of Order 21 will read as:
'where any property has been attached before judgment or in execution of a decree.'
Where the words in a statute are specific and point to a certain thing which exists, it would amount to re-writing the law by judicial decision to import words which would apply to a different thing for which a different rule exists, simply on the ground that some of the characteristics are common to both. Order 38, Rule 11, enacts that it shall not be necessary to reattach in execution. It emphasises the fact that there is no need for and there can in fact be no second attachment and thus affords strong argument against the majority view in '47 Mad 483'. that an attachment before judgment is in effect one in execution.
31. The established practice, both in the Calcutta and Madras High Courts prior to the Full Bench decision in 'ARUNACHALAM CHETTY v. PERIASAMI SERVAI', 44 Mad 902, appearsto have been in favour of holding that an attachment before judgment stood on a different looting from an attachment in execution and that, upon the dismissal of an execution petition, an attachment before judgment did not cease. The Full Bench decision of the Madras High Court in '44 Mad. 902', unanimously held that an attachment before judgment does not become an attachment in execution upon the passing of a decree for the plaintiff, either within the meaning of Order 21, Rule 57, Civil P.C., or within the meaning of Article 11 of the Limitation Act. In 'Ganesh Chandra's Case in 16 Cal L J 86 it was expressly held dissenting from PATTOZI v. EDWARD', 12 Bom 400, that the provisions of Rule 57 of Order 21 had no application to a case in which an order for attachment before judgment had been obtained, and that the attachment subsists not only for the first application but also for subsequent applications. This case also distinguished the case in 'SEWDUTT RAY v. SRIKANTA MAITY', 33 Cal 639, in which Mr. Justice Wood-Roffe made a general observation that on an application for execution, an attachment before judgment became an attachment in execution.
32. 'Ganesh Chandra's Case' (16 Cal L J 86) has been consistently followed in the Calcutta High Court and it has been laid down in a number of cases that the provisions of Order 21, Rule 57, do not apply to a case in which an order of attachment before judgment has been obtained. The view of the Madras High Court in 'MEYYAPPA CHETTIYAR'S Case' 47 Mad 483 was pressed before a Division Bench of the Calcutta High Court arid was rejected in 'SHIBANATH SINGH v. SABARUDDIN AHMED', 56 Cal 416, where Rankin, C. J., definitely rejected the doctrine of merger, on the basis of which their Lordships of the Madras High Court held that an attachment before judgment becomes merged into an attachment in execution when an application for execution is filed The earlier view of the Calcutta High Court in 'BHUGWAN CHUNDER v. CHANDRA MALA', 29 Cal 773 and in 'SEW DUTT v. SRIKANTA MAITY', 33 Cal 639 was also not accepted and the observations therein were regarded as obiter. This decision of Rankin, C.J., in 56 Cal 416 has been reiterated in 'DHAN BIBI v. MRINALINI', AIR 1945 Cal 449, Where it was held that Article 120 of the Limitation Act would apply to a suit by an unsuccessful claimant or plaintiff when the claim is preferred to an attachment before judgment. The anomaly resulting from giving a longer period of six years. to the creditor who attaches the property before judgment while the decree-holder attaching in execution gets only one year, was noticed in that case and it was pointed out that the anomaly could be removed by the Legislature.
33. If there were no decision of the Patna High Court bearing on the point, I should have felt bound to adopt the ruling in 'Ganesh Chandra's Case' which was decided in 1912 as binding upon this Court. In 'BABBAL KUMARI v MULCHAND MARWARI', AIR 1934 Pat 580, it was held that Article 11 of the Schedule to the Limitation Act is expressly limited to claims or objections made to attachment of property attached 'in execution of a decree', but no period of limitation having' been prescribed to a suit under Order 21, Rule 63, although that rule is applicable to a suit arising out of an attachment before judgment Article 11 would not apply. Their Lordships observed :
'No special provision is made for suits of this nature arising out of objections to attachment before judgment, so that Article 120 of the Limitation Act must be held to such suits, as was held by the Madras High Court in 'ARUNACHALAM CHETTY v. PERIASAMI, 44 Mad 902(FB).'
In that case the contention of Mr. Jayaswal (appearing for the defendant-appellants) was negatived on the ground that Article 11 applies only to suits arising out of claims preferred to attachment in execution of a decree. In a later case of Patna High Court reported in 'MOTHI JHA v. JOWALA PRASAD', 16 Pat 589, both the Full Bench decisions of the Madras High Court and a decision of the Bombay High Court in 'HARI VITHAL v. SHRINIVAS', 55 Bom 693, came up for consideration and their Lordships agreed with Sir George Rankin's exposition of the law in 'Shibanath Singh's Case' in 56 Cal 416. This case is clear authority for the position that 'attached in execution' is a phrase that does not cover 'attachment before judgment.' In another case of the Patna High Court reported in 'BENI MAHTO v. CHATURGHAN SAO', AIR 1937 Pat 245, Rowland, J., characterised the argument that attachment before judgment became an attachment in execution after decree as a 'very debatable proposition.'
It is, therefore, clear to me that the consistent view of the Patna High Court has been that Article 120 of the Limitation Act applies to a suit to establish claims to property attached before judgment and that the expression 'attached in execution', occurring in Article 11 of the Limitation Act, does not cover attachment before judgment. The decisions in '44 Mad 902', 'MEYAPPA CHETTIAR v. CHIDAMBARAM', 47 Mad 483 and in 55 Bom 693, have been specifically dissented from, and Sir George Rankin's view which adopted the reasoning of the minority Judges in 47 Mad 483, has been accepted as the right view. It follows that although an attachment before judgment may have the same effect as an attachment in execution within the meaning of Rules 58 to 63 of Order 21, C.P.C., Article 11 of the Limitation Act would apply to suits under Rule 63 to establish claims to the latter class of attachment only.
34. The view of the Patna High Court, that the operation of Article 11 of the Limitation Act is confined to claims to property attached in execution of a decree, is amply warranted by the language of Order 21, Rule 58, as amended by that High Court, Rule 58 has been substituted by ft new rule framed by the Patna High Court. The amended rule reads as follows :
'When any claim 'is preferred to any property, 'the subject-matter of execution proceedings', or any objection is made to the attachment thereof on the ground that the applicant has an interest therein which is not bound under the decree or that such property is not liable to attachment etc, etc.,.....'
Under this rule, an objection can be preferred even in a mortgage suit irrespective of any attachment 'See 'SARJU PRASAD v. JAMES', 22 Pat 709. Such a claim can be made not only during execution proceedings, but even during delivery proceedings and can be investigated under Rule 58 if the property claimed is 'the subject-matter of execution proceedings.'
35. Under Rule 59, as it stands at present in the Code, the claimant is called upon to show that he has some interest on the date of attachment. But this rule has also been altered and its scope enlarged so as to take in claims that the claimant had 'at the date of the decree.' Rule 60 has likewise been amended and substituted by anew rule so as to give it a wider scope. The position, thus is that not only can an objection be made to the attachment of property but also a Claim can be preferred to property which is the subject-master of execution proceedings and the claimant can show the interest he had at the date of the decree ana not merely at the date of attachment. Ex. C snows that Burma's ciaim was entertained not on the ground that it was an objection to an attachment, but that she preferred a Ciaim to the property which was the subject-matter of execution proceedings.
36. Even if we adopt the Madras views that an attachment before judgment becomes converted into an attachment in execution at some stage or other of the execution proceedings, it will be doing violence to the language of Article 11 of the Limitation Act to hold that a suit to establish a claim bo properly which is 'the subject-matter of execution proceedings' is also governed by that Article. As was observed by the Judicial Committee in 'ABHIRAM GOSWAMI v. SHYAMA CHARAN', 36 Ind App 148 at p. 166 (PC) :
'Statutes of limitation like all others -- ought to receive such a construction as the language, in its plain meaning, imports.'
It was argued by Sir Robert Finlay in that case that a permanent lease is tantamount to a conveyance and that a lessee must be treated as a purchaser within the meaning of the Limitation Act. Their Lordships expressed their inability to give to the Limitation Act
' the wider interpretation adopted by the High Court and to treat the lessee as a purchaser under Article 134 of the Act.'
In 'TOFA LAL v. SAYYAD MOYEMUD-DIN', 4 Pat 448, Sir Dawson Miller, C.J., observed at page 457 of the report:
'Moreover, I consider that in giving effect to the Statute of Limitation, if two articles limiting the period for bringing a suit are wide enough to include the same cause of action, and neither of them can be said to apply more specifically than the other, that which keeps alive -- rather than that which bars -- the right to sue should, generally, ana apart from other equitable considerations, be preferred.'
The words of the articles of the Limitation Act have to be strictly construed: See 'YERUKOLA v. YERUKOLA', 45 Mad 648 at p. 688 (FB). Courts, in dealing with questions of limitation should as far as possible, place upon the Limitation Act a construction favourable to plaintiffs: See 'SESHAYYA v. SUBBUDU', 54 Mad 445. In 'PONNU NADAR v. KUMARU REDDIAR', 59 Mad 75, the question was whether Section 23 of the Limitation Act applied to that case and Curgenven. J., held I that where the applicability of the Section is doubtful the proper course should be to enforce against the plaintiffs the ordinary principles of limitation and accordingly applied Article 120. In the Pull Bench case of 'PURNA CRANDRA v. SASSOON', 25 Cal 491. MacLean, C. J., observed:
'Reading the language of Section 12 -- a Section be it remembered in a Limitation Act, the provisions of which must be construed strictly, and which, when set up as a defence must not be extended to cases which are strictly within the enactment, whilst exceptions or exemptions from its operation are to be construed liberally, etc, etc.......'
37. In my judgment the majority view in 'MEYAPPA CHETTIAR V. CHIDAMBARAM', 47 Mad 483, is contrary to sound canons of construction and unduly enlarges the scope of Article 11 by importing into its words which are not to befound there. The considerations which weighed with the majority judges in that case were;
(1) that one object of the provisions relating to claim proceedings is to settle questions of titile arising in execution as expeditiously as possible;
(2) that one year period was prescribed for suits to establish claims to attachments before and alter attachment under the bid Code and that there was no apparent reason to think that the Legislature intended to after the rule when the new Code came into force; and
(3) that it is unfair that the decree-holder who obtains an attachment before judgment should have greater indulgence and have a longer period of limitation, to establish his claim than one who has attached the property in execution. These reasons, if I may say so with great respect, are not adequate justification for modifying the words of the Statute.
To adopt that reasoning and enlarge the scope of Article 11 would constitute an encroachment on the plain meaning of the statute. The object of ciaim proceeding's is, no doubt, to settle questions of titie expeditiously and that is the reason why Rule 58 has been amended. But the Legislature deliberately used language in the Limitation Act of 1908 which excludes an attachment before judgment. Under the old Code the period of limitation was no doubt one year for suits to establish claims to properties attached before or after decree and the Limitation Acts of 1871 and 1877 mentioned the Section of the Civil Procedure Code, orders under which were governed by the shorter period of limitation. In Article 11 of the present Act the reference to the provisions of the Civil Procedure Code has been omitted and the words 'in execution of a decree' have been added. The omission of any reference to the rules of the Civil Procedure Code is as deliberate as the addition of the words 'in execution of a decree' in Article 11 of the Limitation Act of 1908. The longer period thus given to the creditor who attaches before judgment may be due to the fact that his decree may be under appeal and may take a long time for final disposal while execution may be going on simultaneously. It could not have been contemplated by the Legislature that he should be driven to the necessity of filing a suit under Order 21, Rule 63, while the decree which was being executed was itself under appeal.
38. But apart from these speculations, whether the Legislature intended to after the rule or not is beside the point in interpreting the language of the Limitation Act. We are here, dealing not with what the Legislature might have intended but with the language employed by it to express itself. With the wisdom, morality or policy of the Act the Court of the Justice have no direct concern. As was observed by Lord Herschell in 'BANK OF ENGLAND V. VAGLIANO', 1891 App Cas 107 :
'The proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by consideration derived from the previous state of the law, and not to start with enquiring how the law previously stood and then assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an Interpretation in conformity with this view. If a statute, intended to embody in a Code a particular branch of the law, is to betreated in this fashion it appears to me that itsutility will be almost entirety destroyed and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, roaming over a vast number of authorities in order to discover what the law was, exitracting it by a minute critical examination of the prior decisions.......'
These observations have been adopted by the Judicial Committee in interpreting Indian statutes: See 'NORENDRANATH v. KAMAL BASINI', 23 Ind App 18 (PC). In another judgment of the Judicial Committee, 'H. M. EDWARDS v. ATTORNEY-GENERAL, CANADA', 58 Mad L J 300 (PC), the Lord Chancellor quoted, with approval the observations of Parwell, L J., that :
'although it may perhaps be legitimate to call history in aid to show what facts exist to bring about a statute the inferences .to be drawn therefrom are exceedingly slight.'
In 'RAMANANDI v. KALAWATT, 55 Ind App 18 (PC), Lord Sinha delivering the judgment of the Board said:
'Where there is a positive enactment of the Indian Legislature the appropriate course is to examine the language of that statute and to ascertain its proper meaning uninfluenced by any considerations derived from the previous state of the law.'
I have, therefore, no hesitation in holding that commonsense, established practice, and general convenience, require that a construction different from that which the learned majority Judges took in 'MEYAPPA CHETTIAR v. CHIDAMBARAM', 47 Mad 483 should be adopted.
39. The earlier view of the Madras High Court has found favour in the High Court of Calcutta, Fatna and Allahabad. In 'AKHEY RAM v. BASANTLAL', 46 All 894, Sulaiman, J., followed the earlier Madras view laid down in 'SURAPARAJU v NARASIMHAM', 26 Ind Cas 81 (Mad); 'BAVUDDIN V. ARUNACHALAM', 26 Mad L J 215 and 'VENKATESUBBIAH v. VENKATA-SESHAIYA', 42 Mad 1. All these cases followed 'Ganesh Chandra's Case' in 16 Cal L J 86. So far as the Bombay High Court is concerned the course of decision has not brfen uniform. In 'HARI SABAJI v. SRINIVAS VITHAL', 55 Bom 693 which was a Letters Patent appeal against the judgment of Baker, J., in 'SHRINIWAS VITHAL v. HARI SABAJI', 53 Bom 543, Madgavkar, J., adopted the Madras view in 'MEYYAPPA Chettiyar's Case' in 47 Mad 483 in preference to that of Rankin, C. J., in 'Shibanath Singh's Case' in 56 Cal 416. But in a later case of that High Court reported in 'BALIRAM v. SAKHARAM', AIR 1940 Bom 250 both 47 Mad 483 and 55 Bom 693 were distinguished.
40. The balance of authority is thus decidedly in favour of the reasoning adopted in the Calcutta High Court and followed in the Patna High Court, and I would accordingly hold that Article 11 of the Limitation Act does not apply to the present suit where the plaintiff seeks to get over a claim made to property which was the subject-matter of execution proceedings.
41. I would accordingly dismiss the appeal with costs.
42. Two Patna cases have been since brought to my notice, viz., 'BENI MAHTO v. CHATURGUN SAG-', AIR 1937 Pat 245 and 'MOTHI JHA v JWALA PRASAD', 16 Pat 589. The former expresses no opinion on the question under consideration. The latter undoubtedly is in favour of the view taken by Chief Justice Rankin in 'SHILANATH SINGH V. SABARUDDIN AHMED', AIR 1929 Cal 465, but is a case only under Order 21, Rule 57, C. P. C. and not one under Article 11 of the Limitation Act. On the other hand Justice Das in 'RAMDHARI LAL v. NATHU RAM', AIR-1921 Pat 140, has expressed himself as follows;
'In my opinion the effect of rule 11 of Order 38is to give the same operation to an attachmentafter judgment.'
The case in 'MT. BABBAL KUMARI v. MULCHAND', AIR 1934 Pat 580 in terms purports to follow 'ARUNACHALAM CHETTY v. PERIASAMI SERVAI', 44 Mad 902, in so far as it holds that Article 11 does not apply when the question arises before decree and expresses no opinion against the applicability of Article 11 when the matter arises in execution as in the present case. It appears to me therefore that there is no case at ail in the Patna High Court which holds that Article 11 is not applicable to the facts like those '* the present case, by which I am bound nor indeed of any other High Court.
43. Undoubtedly there is considerable difference of opinion in relation to Order 21, Rule 57 in all the High Courts including Madras High Court. When a question under Order 21, Rule 57, C. P. C. directly arises it may be a matter for consideration whether 'MOTHI JHA v. JOWALA PRASAD', 16 Pat 589, is to be followed or the matter has to be decided by a Pull Bench.
Das and Panigrahi, JJ.
44. In view Of the difference between us, the question of law on which we differ, namely, whether Article 11 of the Limitation Act applies to the facts of this case as found by us, will be referred for decision by a third Judge under Section 98 of the Code of Civil Procedure. Let the papers be placed before His Lordship the Chief Justice for necessary orders.
45. The appeal was heard by two learned Judges of this Court, Mr. Justice Das and Mr. Justice Panigrahi. They differed on a question of law, namely, whether Article 11 or Article 320 of the first schedule of the Indian Limitation Act would govern the plaintiff's suit admittedly under Order 21, Rule 63, Civil P. C., and hence it has been placed before me. The circumstances in which the point of law arises, so far as they are material for that limited purpose, are shortly these.
46. The appellant Durga Dei is defendant No. 1 being the daughter of one Kinu Sahu. Defendant No. 2 claims to be his adopted son. Defendant No. 3 is the son of defendant No. 2. The plaintiff brought a suit to enforce a mortgage, dated 5th of May 1919, obtained a decree and sold the mortgaged properties. The sale proceeds of the mortgaged properties were inadequate to satisfy the decretal amount. For realising the balance, the plaintiff applied for obtaining a personal decree under Order 34, Rule 6 of the Civil P. C. against the defendant No. 2. While the adjudication of the claim under that petition was pending, he obtained an order for attachment of the disputed properties before judgment, under Order 38, Rule 5 of the Civil P. C. The attachment was effected, on 14th of January, 1938. The application for personal decree succeeded, and a decree was passed on 23rd of April, 1938.
The plaintiff thereupon launched the execution case, No. 354 of 1940. In it, the Court directed that the property already attached before judgment be sold in execution of the decree for satisfaction of the decretal dues. Thereafter, defendant No. 1's mother Suna Bewa preferred a claimto the disputed properties claiming to be the heir of her husband who was undisputedly the last owner. She in that petition, contested the right of defendant No. 2 as Kami's adopted son. A Misc. case (No. 59 of 1941) was registered on her claim petition. Her claim was allowed, by an order dated, 22nd of April, 1941. As, admittedly, Ithe order was passed under Order 21, Rule 60 the Court releasing the property from sale -- this order of release comes within the purview of Rule 63. According to this rule 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. In the present case the order removing the attachment was against the plaintiff decree-holder. That order was challenge'able by a suit at his instance within a time prescribed in the Indian limitation Act, but in default of such a suit, the order is to be considered conclusive with regard to the question of title relating to the property concerned which was the subject-matter of the order.
Admittedly, in the present case, no suit purporting to be one under Rule 63 was filed within one year, the prescribed time for a suit contemplated in Article 11 of the first schedule to the Indian Limitation Act. To resume the narrative of events, it so happened that the execution case was later dismissed. A second execution case No. 67 of 1944 was initiated by the decree-holder. In this execution, again, the self-same property which was the subjects-matter of the order of release under Rule 60, known as lot No. 1 of the present suit, was sought to be sold on the basis of the pre-existing attachment before judgment. Besides o new lot of property known as lot No. 2 of the present suit was also attached. A fresh Misc. case was started by way of objecting to the attachment and sale of both the lots Nos. 1 and 2. This claim case was started by the daughter and heir of the claimant of the previous Misc. case No. 59 of 1941. This claim too was allowed. The present suit was filed by the decree-holder purporting to be one under Order 21, Rule 63 of the Civil P. C. on 28th of January, 1946 in order to establish the decree-holder's right to bring the properties lots Nos. 1 and 2 to sale.
47. The defendants pleaded that the suit so far as it affected lot No. 1 was filed beyond the prescribed period and was thus barred by limitation. In aid of this plea they relied upon Article 11 of the Indian Limitation Act.
48. There has been apparently some difference or opinion in different High Courts with regard to whether 'an attachment before judgment' is an 'attachment in execution' of a decree for all material purposes. This question having cropped up for decision in the Second Appeal, the two learned Judges have answered it differently. According, to Mr. Justice Das notwithstanding that the attachment was originally an 'attachment before judgment', it became 'an attachment in execution' after execution of the decree was taken up and the sale order, in respect of the previously attached properties was passed. Any claim to the property so attached or any objection made to the sale thereof would be one contemplated within the meaning Article 11 of the Indian Limitation Act. Taking this view, he would hold that the plaintiff's suit as against lot No. 1 is barred by limitation. Mr. Justice Parugrahi is of opinion that attachment 'before judgment' never becomes an attachment 'in execution' for the purpose of Article 11 and tine provision of the Limitation Act which governs such a suit, would be Article 120, of the Indian LimitationAct, as, according to his opinion, no other Article specifically applies to the case. At the outset I should say that Mr. Justice Panigrahi is inclined to the view as it appears to him that his opinion is supported by the decisions of the High Courts of Calcutta, Patna and Allahabad.
49. After very carefully considering the question under review, I have arrived at the conclusion that Article 11 of the first schedule of the Indian Limitation Act applies to the present suit in the facts of the present case and I shall now proceed to give my reasons. I do not however propose to be very elaborate in my exposition adopting as I do, as my own, the reasonings advanced by Mr. Justice Das. Mr. Justice Das has taken pains to consider the question from all the possible angles of vision. According to Mr. Justice Panigrahi it is the language, in which Article 11 has been phrased which should be not only the principal but rather the only factor decisive in its interpretation. I would respectfully differ from him and say that language is simply the guide but not the sole decisive factor in interpretation of statutes. The intendment of the Legislation, the background in which the particular provision has been enacted and the inter-connection between it and other provisions intended, either procedural or substantive, tb achieve the self-same object, are dominating considerations so far and so long these latter considerations do not do complete violence to the language. A fair interpretation even though not sanctioned by too literal a reading of the provision is admissible. Article 11 reads :
'By a person against whom any of the following orders has been made, to establish the right which he claims to the property comprised in the order: (1) Order under the Code of Civil Procedure, 1908 (Act 5 of 1908), on the claim preferred to, or an objection made to the attachment of, property attached in execution of the decree;'
Applying my mind to the language of this Article, free of any authorities whatsoever, I would hold that in order to attract its application the following circumstances should coincide, namely, (1) The suit must be one to establish the right which the plaintiff claims to a property, which should have been the subject-matter comprised in an Order under the Code of Civil Procedure, 1908; (2) That order must have been made against the plaintiff; (3) That order must have been passed in relation to a claim preferred to the property in order to save it from attachment or sale in execution of a decree or on an objection made thereto; (4) That order should have been passed in execution proceeding of a decree; and lastly, the attachment affected by the order must have been the mode adopted for execution of the decree. The term 'in execution of a decree' could have been more artfully and, without any violence to the rules of grammar, put earlier in the sentence than where it has been located.
50. In my view 'in execution of a decree' will govern not only the words 'attached' and 'attachment' but also the preceding words 'the claim and objection, in relation to which the orders are made.' I should discriminate from such an order as above, an order on a claim or objection in a proceeding other than an execution proceeding such as the one under Order 38 of the Code. At this stage, I should point out that when a claim is made to the property attached before judgment prior to the passing of the decree, the order is one which is not strictly governed by Rule 63 of the Civil Procedure Code. I would here refer tb the decision of the very learned Judge of the Calcutta High Court in the case of 'BASIRAMMALO v. KATTAYAYANI DEBI', 38 Cal 448. The learned Judge Mr. Justice Mookerjee observes :
'The Legislature intended that investigations of claims to property attached before judgment should be determined at that stage, when such claims are preferred by persons who are strangers to the suit. If the Legislature had also intended that an objection of the description taken before us should be investigated at this stage, 'an appropriate provision' in that behalf would have been made in the Code. It follows, therefore, that an attachment before judgment does not for all purposes stand on the same footing as an attachment in execution proceedings. This, indeed, is obvious from first principles. The attachment does not of necessity ensure the property to the person who attaches it. He becomes entitled to proceed against it only 'if he eventually gets a decree. The plaintiff must not only wait until he has obtained a decree; it is not competent to him to proceed against the property attached until he has also taken the preliminary steps which the law requires for its enforcement; in other words, he must apply for execution, just like any other creditor.'
This, in substance, is the view of the Full Bench of the Madras High Court, namely, that an attachment before judgment becomes an attachment in execution of a decree, not after mere passing of the decree, but after the decree is sought to be executed and the property already attached is sought to be proceeded against in execution in the Court auction. I should quote another passage from the same learned Judge's judgment that occurs earlier in which His Lordship has made it clear that nobody is called upon until the decree is passed and execution is sought to take any exception to the attachment of or advance any claim to the property attached before judgment. His Lordship observes :
'Consequently, if the judgment-debtor, contends that the property is incapable of attachment, because it is not transferable, the proper stage at which the objection can be urged is 'when the application for attachment is made.' In the case before us, however, no steps could possibly be taken on the basis of the attachment before judgment till a decree had been made in favour of the plaintiff. In our opinion, it would be a needless hardship on the judgment-debtor if he was obliged, at the stage when an application was made for attachment before judgment, to take exception to the validity of the attachment on the ground that the property was not transferable. It has not been disputed that 'if this contention prevailed' and an investigation was made as to the character of the property attached at this stage, the order would be final, because the Code does not provide for any appeal against such an order. On the other hand, if it is held that such an objection may be taken as soon as an application for execution has been made after the decree, the propriety of the order could consequently be tested under the provisions applicable to suits governed by Order 21, Rule 63, Civil P.C.'
It should be borne in mind that the question for consideration in that case was whether a person who has not objected to the attachment of the property concerned before judgment, would be allowed to do so after the decree is pronounced, it being contended that one who has not taken such objection at the time when the attachment was ordered shall not be allowed to do so after the decree was passed. The simple reason why a suit attacking an order either allowing or disallowing a claim or objection to attachment of properties in a case of attachment before judgment is not governed by Article 11 of the Indian Limitation Act, is that the order was passed in the suit and not in execution of a decree.
51. Pre-eminently Article 11 is enacted to govern the period of limitation for a suit which is contemplated in or in respect of which the right of suit is granted by the provisions of Order 21, Rule 63 of the Civil Procedure Code. I should here call attention to the identity of language in which the contemplated suit is described both in Rule 63 of the Code and Article 11 of the Indian Limitation Act. Rule 63 provides, the party against whom an order is made may institute :
'a suit to establish 'the right which he claims' to the property in dispute.'
Truly speaking a decree-holder who has obtained a decree for money has, independently of this rule, no right to the property which is under attachment or which is otherwise the subject-matter of the execution proceedings. It has always been held that an attaching creditor by the fact of mere attachment does not acquire any lien or charge far less any right to the property concerned. The description adopted in this rule is a peculiar one. The meaning of the 'right to bring the property to sale has, for the purpose of the rule, been adopted and described as 'a right' claimed 'to property.' This right is in the decree-holder as much against the property in respect of which an order of attachment has been made in execution and the attachment has been effected in pursuance thereof as against the property which has been attached before judgment, but is sought to be proceeded against for the purpose of executing a decree by its sale and appropriating the sale proceeds towards the decree-holder's dues. This I think is the crux of the whole question. There could be absolutely no point for the Legislature to prescribe two widely different periods of limitation for the selfsame decree-holder's suit, for establishing the selfsame 'right' to the property which is sought to be sold in execution of a decree. Coming to Article 11 it also describes a suit in the identical terms, namely :
'suit to establish the right which he claims to the property' (comprised in the order.)
Another thing has to be remembered that it is the adverse order that gives rise to the cause of action for the suit and that according to Article 11, the order must have been passed in course of an execution proceeding and while considering claim to the property concerned or an objection to the attachment thereafter. Nothing can be said to turn upon as to when the order for attachment was passed or when the actual attachment was effected in considering the application of the Article. The time that is material for the purpose of giving rise to the cause of action and therefore setting the period of limitation in motion is the time when the order was made and the Article declares that the order must have been made in an execution proceeding. Having all these material considerations in mind, I do not find anything in the language of this Article which would lead us to any reasonable doubt as to its applicability to the suit of the present character.
52. 'Attachment in execution' or 'attached in execution' are not terms of art nor are they technical ones. They are to be understood in the setting of the purpose for which the attachment is being availed of. As all eminent Judges have said until a decree is passed, the attachment before judgment is a mere security. After mere passing of the decree, the decree-holder could not have possession of the property attached nor could forthwith proceed to sell it. He has to make an applicationfor execution and has to say either expressly or by necessary implication that he will avail of the attachment already effected and the Court's order thereon granting his prayer would make it an attachment available for the purpose of the execution sale for satisfaction of the decree. The time and the circumstances under which that order of attachment was made does not determine its character finally nor does it put any permanent stamp upon it so that it can never be called to be an attachment in execution, even though for all material purposes without an exception, it serves the purpose of an attachment in execution or for execution. Language would control us so far as it serves the purpose of expressing or finding out the intention of the provision concerned. It would be a guide but not our autocratic master in inter-pretation of the provision. The guide should be from the background in which the concerned provision occurs.
Therefore it is necessary to refer to various other provisions of the Civil Procedure Code which deal with 'attachment in execution.' I would think that Sections 63 and 64 would be decisive in deciding what 'the words an 'attachment in execution' or 'attached in execution' of a decree would mean. Section 64 provides that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein shall be void 'as against all claims enforceable' under the attachment. Suppose we hold that an attachment before judgment never becomes an attachment in execution of a decree. Let us push this assumption to its logical conclusion in a hypothetical case on the basis of the said assumption remembering that the property attached before judgment is never sought to be re-attached, but the decree-holder proceeds with the execution of a decree by obtaining an order to put the property to sale and a bona fide purchaser purchases it though before the sale, but after the attachment before judgment, private transferee has purchased the property. If there is any provision in the Code, which will help to determine the respective priority of rights, as between the rival claimants, namely, the private transferee and the auction-purchaser, in the circumstances already set out, it is Section 64. It is not disputed that the auction-purchase shall prevail over the private transfer as it is void against all claims enforceable under the attachment.
On the assumption already made, however, the private transferee could plead successfully that as there has been no attachment in execution of the decree his right is to prevail as he has not to compete against any claim enforced under attachment; that the auction-purchaser's right comes into existence only with effect from the date of auction sale and that on its confirmation and that before any of these two events happened it was all along the property of the judgment-debtor and he had always been free to dispose it of. The assumption then leads us to an absurdity. Therefore the only conclusion that is tenable is that the attachment before judgment is an attachment in execution of the decree for this very important purpose of its enforcement. Then the question arises when does it become an attachment in execution. Certainly it does not so become until the decree is passed nor merely because the decree is passed. It must, therefore, become an attachment in execution on account of the Court's order, at the solicitation of the decree-holder, that the property attached before judgment should be sold in execution of the decree. Coming to Section 63, it appears that, on the above assumption, this section too will be completely nugatory so far as the power of the Court receiving the sale proceeds of a sale that was held on the basis of an attachment before judgment was concerned. The section reads :
'Where property not in the custody of any Court is under attachment 'in execution' of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof, shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property 'was first attached'.'
'Was first atached' cannot be construed to mean and include attachment before judgment. The words 'first attached' has reference to the description of multiple attachments in execution of decrees of more Courts than one. One cannot read this phrase 'first attached' dissociated from the earlier portion of the section. Therefore, are we to consider that where the Court proceeds to execute a decree against the property which had been attached before judgment and had never re-attached it (as such re-attachment is made unnecessary according to the provisions of Order 38, Rule 11) it is no Court within the contemplation of Section 63. That he is one of such Courts is the unanimous opinion of all High Courts. The position is not questioned either. Here therefore is a section in the Code itself which makes no distinction between attachment before judgment utilised or availed of for the purpose of execution of the decree and an attachment ordered and effected in course of the execution proceeding. It is manifest that for the purpose of this section we are bound to assume that attachment before judgment becomes an attachment in execution when the Court orders enforcement of the claims under it by directing sale in execution of a decree. I win then. make a reference to Order 21, Rule 55. The marginal note of the rule is:
'removal of attachment after satisfaction of the decree.'
It runs as follows:
'Where the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into Court, the attachment shall be deemed to be withdrawn...''
The words used in this rule is 'attachment' without the addition of the words 'in execution.' Is the attachment referred to in this rule is an attachment in execution or not? The answer must be in the affirmative. Then the question arises, should that rule exclude attachment before judgment? The answer must be in the negative, otherwise the result will be serious. The seriousness of the result will be evident on mere stating it, namely, that the attachment will continue even though the decretal amount and the costs are paid. This is an impossible result which the Legislature could never have intended.
53. It has been conceded in this case that the adverse order which gave rise to the present suit was one which was made on investigation of claims and objections within the meaning of Order 21. Rule 58. Let us read this rule. It reads:
'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.'
If we stick to the view that within the meaning of this rule 'property attached before Judgment'cannot be said to be property attached in execution of a decree, then the Executing Court acting within the purview of Rule 58 is not the authority for determination of any claim or objection in regard to the attachment of properties attached before judgment. This result will be inevitable and inflexible unless we hold that 'property attached in execution' should also mean and include 'property attached before judgment and now proceeded against in execution.' If that is the meaning of the phrase 'property attached in execution' in the very Code which enacts the law that confers on the decree-holder or the claimant the right of suit, I see no valid reason, or to say more emphatically, no conceivable reason why the same meaning should not be attached to the same words used for describing the 'very suit' which is contemplated in the Code. The words now referred to as occurring in Rule 58 must be carried over to Rule 63 and for the matter of that to Article 11. Rule 58 is the first of the fascicule of sections which deal with investigation of claims and objections, the extent of the Court's power in regard thereto, the questions that arise for consideration in relation to them, and the extent of the validity of the order passed on that investigation, and the right of the party affected to suit to avoid the effect thereof. In this background, Article 11 is enacted for prescribing the period of limitation for the very suit which arises out of the investigation of the claims and objections within this pant of'the Code.
As many Judges have said, expeditious disposal of such disputes is the very purpose for which a shorter period of limitation was provided for, and has always been provided for in the Article and its language shall be understood to mean accordingly. It has been accepted by Mr. Justice Panigrahi that Rule 63 in its application extends to all orders passed on investigation of claims and objections to attachment before judgment. If that be so, I see no reason why the words used in Article 11 will not have the same meaning and will not have reference to the same sort of attachment of property as are referred to in Rules 58, 59, 60, 61, 62 and 63. The word used in Rule 63 is the property in dispute, that means the property in dispute within the meaning of Rule 58. The very words 'property attached in execution of a, decree' have been most appropriately used in Rule 58. Therefore independently of any authority, whatsoever, on my reading of these provisions of the Civil Procedure Code which are all interconnected -- all converging to facilitate execution of decrees obtained by decree-holders and provide for the remedies of either judgment-debtor or decree-holder or any stranger who comes in with claims and objections, I am definitely of opinion that Article 11 will have the meaning assigned to it by my learned brother, Das, J..
54. It has been said in the judgment of my learned brother Mr. Justice Panigrahi that the views of the Calcutta High Court are contrary to the one adopted by Mr. justice Das. particularly of Chief Justice Rankin who is one of the Judges of whom it is said that he seldom errs. It may be that his judgment might have been the turning point so far as my views are concerned. I therefore took great pains to read through and through his judgment in the Calcutta High Court in which he differed to certain extent from the Full Bench decision of the Madras High Court reported in 'MEYAPPA CHETTIAR V. CHIDAMBARAM CHETTIAR' 47 Mad 483, as to the construction of Order 21, Rule 57. On close reading. I am very much convinced, with great respect to the learned Chief Justice that, he should have come to thesame conclusion as the Full Bench of the Madras High Court had the question now at issue been before him for decision. I will presently quote the relevant passages of his judgment. The judgment referred to was pronounced by Rankin, C. J., sitting with Mukherji, J., in the case of 'SHIBNATH SINGH v. SABERUDDIN AHMED', 56 Cal 416. The question before their Lordships was whether on dismissal of an execution case on default of the decree-holder, the attachment before judgment, which was being enforced for the purpose of execution, should cease. For better understanding the provision of Rule 57 of Order 21 has to be quoted. The rule reads :
'Where any property has been attached, in execution of a decree but by reason of the decree-holder's default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application the attachment shall cease.'
The attachment here evidently means the attachment referred to at the beginning of the rule, namely, attachment in execution. In the Madras High Court Full Bench Decision already referred to, the majority view was that as an attachment before judgment, becomes an attachment in execution, it should also cease. The Chief Justice Sir George Rankin disagreed with this view. Before quoting some passages from his judgment I will place the facts of the case. In that case the property had been attached before judgment. After the said attachment the plaintiff purchased the property by a private sale on 29th of September 1921. The attachment before judgment had been effected on 10th of August 1919. The decree-holder applied for execution on 14th of June 1921 and took out a fresh attachment on 24th of June 1921. This execution proceeding was dismissed for decree-holder's default on 6th September 1921. Another application for execution was made on 19th of that month and it will be remembered that 10 days after this the private transferee purchased the property. After the private purchase the decree-holder again took out a fresh execution on 3rd of December 1921 and in that execution ultimately the property was sold to an outsider Naturally a conflict of title arose between the private purchaser whose purchase was after the dismissal of the first execution case due to decree-holder's default and the auction-purchaser.
The question arose whether by the dismissal of the said application the attachment before judgment also ceased to exist as much as an attachment in execution referred to in Order 21, Rule 57. That was in fact the plea of the private purchaser. The auction-purchaser on the other hand contended that notwithstanding several re-attachments in two consecutive execution cases, the attachment before judgment was neither waived nor merged in any of these attachments and besides, the said attachment subsisted all the while notwithstanding the provision of Order 21, Rule 57. That is how the decision of Sir George Rankin came in conflict with that of the Full Bench of the Madras High Court. So far as the Calcutta High Court was concerned, his Lordship had before him the case of that Court, that is, 'GANESH CHANDRA v. BANWARI LAL', 16 Cal W N 1097, equal to 16 Cal L J 86, by which his Lordship felt himself bound. The ratio of his decision shall appear from the following passage :
'Rule 57 of Order 21 was a new provision introduced in 1908. It is evident from the language of the rule itself, and it is still more evidentfrom the Circumstances under which it was passed, that it was intended to provide a remedy for the grievance or inconvenience which is apt to arise, where, after an attachment in execution, the application for execution cannot further be proceeded with by reason, of the decree-holder's default. This was, and still is, a very common case. The decree-holder makes some informal arrangement, to give the judgment-debtor time without obtaining full satisfaction of the decree; the application for execution is not further prosecuted; it is not withdrawn; neither party attends, in these circumstances, the object of the rule is to say that the Court must make either an order for adjournment or an order of dismissal. The reason why it was necessary to require the Court, if it did not adjourn a proceeding to a definite, date, to dismiss the application for execution formally and definitely can be amply illustrated from the decided cases. In the absence of a definite order of dismissal, the files of the Courts became encumbered, with a number of applications for execution which were waterlogged and derelict, and a practice arose whereby such applications were ordered to be 'struck off.' This was a practice not justified by the Code and in cases where attachments in execution had already been ordered, the question arose whether the effect of an order 'striking off' was that the attachment made upon an application for execution was itself struck off or whether it remained notwithstanding such an order. Many other awkward and important questions arose out of this practice and the object of Rule 57 was to ensure that this illogical and inconvenient practice should be stopped. Applications for execution were to be definitely dismissed if they were not adjourned to a future date. The object of the last sentence in Rule 57 is to settle the question whether when the application in execution is dismissed, any attachment, made under that application, should fall to the ground or should subsist, and the legislature has provided that it is to fall to the ground. In these circumstances, it seems reasonably clear to me that it is no part of the intention of this rule to say that an attachment before judgment, which existed before any application could be made in execution, and which prima facie would continue to have effect if no application for execution had been made, should fall to the ground merely because a subsequent application for execution has come to nothing.'
I will then show how his Lordship has fully agreed with the view of the learned Judges of the Madras High Court who wanted to give an extended meaning to the word 'attachment in execution' so as to include within it attachment before judgment. He says,
'I quite agree with Coutts-Trotter J. that this is not a question of giving a strict construction to a penal provision. Still the phrase 'attached in execution of a decree' can only be extended beyond its 'proper meaning by reason of an implication required by the object of the rule or else by showing very clearly that it is required by some other rule of a germane character'.'
I would very strongly rely upon this authority. The Rules 58 to 63 and the description of the suit described therein are such rules of a germane character, as observed by his Lordship, and he is quite agreeable to give those provisions the meaning assigned by Madras Bench. An extended meaning can be given, to 'the words 'attached in execution of a decree'. Besides his Lordship has further observed.
'A perusal of the judgments in the Madras case does not disclose to me any ground upon which it could be held that unless upon the dismissal for default of an application for execution the attachment before judgment shall come to an end 'the true intention of any other rule is interfered with.'
I have shown already that in the matter of application of Article 11 or in the matter of interpretation of Rules 58, 63 and the other rules already referred to by me, true intention of the rules shall be defeated unless we include 'attachment before judgment' which is being availed of for the purpose of execution to become 'an attachment' in execution. At another place his Lordship has said
'By reason of this provision no execution based upon an attachment before judgment can be distinguished in validity or character from an execution based upon an attachment in execution unless, indeed, some particular enactment can be seen to be addressed to this distinction.'
Therefore his Lordship is quite clear that with regard to the validity and character of an attachment, there is no distinction between an attachment before judgment used for the purpose of execution and an attachment actually effected in course of execution. While dealing with Order 38, Rule 11 at page 424 his Lordship observes,
'The provisions of Rule 11 Order 38 may well operate to prevent its being said that a sale in execution of a decree is without any basis of attachment in execution.'
This definitely proves that the views of Rankin C. J. are in agreement with that of the majority of the Madras Full Bench. I think I owe a word to be said by way of explanation of the passage. What His Lordship means to say is if there is an attachment before judgment and even if no reattachment is made, in course of the execution proceeding but execution Is carried, on with the result of selling that very property and realising the assets for satisfaction of the decree, that sale shall be taken to have for its basis an 'attachment in execution' this, in other words, tanta-mounts to say that an attachment before judgment, which is availed of for the purpose of execution of the decree and the properly attached before decree is sought to be sold in execution, becomes attachment in execution. I am therefore of opinion that the learned Chief Justice is not against the view taken by the Madras High Court in the Pull Bench decision reported in 'ARUNACHALAM v. PERIASAMI', 44 Mad 902. I will refer to the case of 'SEWDUT ROY v. SREE KANTO MAITY', 33 Cal 639, in which another very eminent Judge of the Calcutta High Court, namely, Mr. Justice Woodroffe has very emphatically pronounced,
'An attachment before judgment; though it gives a security, does not create any charge on the property attached, which remains that of the defendant. Nor does a decree following such attachment place ipso facto in a better position the creditor, who must apply for execution from which it is not exempted by Section 490 of the Civil Procedure Code (Order 38, Rule 11). On such application for execution, the attachment before judgment enures and 'becomes an attachment in execution'.'
This opinion of Mr. Justice Woodroffe has never been departed from in any judgment of the Calcutta High Court. To the best of my ability I have made a full search for it. This is exactly the view at which the Full Bench of the Madras High Court has arrived at. It is difficult for me to accept that the view of the Calcutta High Court is different from that of the Madras High Court.On the contrary, I would say that this opinion was already there in the Calcutta High Court by the time the opinion of the Madras High. Court, on the point, was expressed. Mr. M. 3. Rao has relied upon two cases of the Calcutta High Court. One is 'DHAN BIBI v. MRINALINI GHOSH', AIR 1945 Cal 449 and the other is 'AYAZALI MIR v. MAHANANDA BAR-UP, AIR 1949 Cal 320. I shall deal with these cases one after another. So far as 'AIR 1945 Cal 449' is concerned, where the claim was advanced as against the attachment before judgment before the decree was passed and the unsuccessful claimant instituted a suit also before the passing of the decree it was held that the period of limitation was governed by Article 120 and not by Article 11 nor by Article 13. The distinguishing fact in that case was that the claim, was not only made before judgment, but also before the, decree was passed. Suppose a case arises in which the claim is made, but not disposed of, till after the decree is passed and an execution taken out of the decree, a different consideration will arise. That will be an order within the meaning of Rule 63 and the party adversely affected will have to bring his suit within the prescribed period of limitation in Article 11. The distinction made by the learned Judge who delivered the judgment of the Court was expressed in the following manner:
'The order rejecting the claim of the appellant was made in the suit'.'
As I have already said, Article 11 requires that the order should have been made in execxition. I will refer to here another passage from the above judgment, namely,
'As an attachment before judgment is not an attachment in execution of a decree for the reasons that at the time when it is made there is no decree in existence, that article would not, on a plain reading apply where a suit is brought either by the plaintiff in the money suit or the claimant.'
The ratio of the decision, as it appears from the passage quoted, is that at the time the claim was advanced there was no decree, no execution. They held that as against the order disposing of the claim a suit was to be filed and such a suit was not one contemplated in Article 11 which presupposes the existence of a decree and execution when the claim against attachment is adjudicated. We however are dealing with a case in which there was a decree in existence and an execution case was in full swing and it was in that execution case that the claim was adjudicated upon. If Order 21, Rule 58 did not apply, as it did not apply in the reported decision, I will hold that attachment before judgment of that case cannot be an attachment in execution. Then in that case the plaintiff will have no right to institute a suit within the meaning of Rule 63. Particularly, in view of Mr. Rao's contention based on some authorities cited by him, the portion of Rule 63 which provides for institution of a suit subject Ho the result of which the order under Rule 63 is final, does not apply to cases of attachment before judgment. The other case relied upon is AIR 1949 Cal 320. That was a case under Order 21, Rule 57 and the decision of Sir George Rankin, C. J. in '56 Cal 416, was followed. If I am asked to give my own opinion with regard to the operation of Order 21, Rule 57, I will agree with the view taken in the Calcutta High Court as well as that of the Patna High Court, rather than with the Full Bench decision of the Madras High Court. The simple reason is that on the dismissal of the execution case all orders passed by the executing Court in course of that execution proceeding are 'nullified', while the attachmentbefore judgment is an order passed in the suit Secondly, it has been said in Calcutta High Court, in the cases already referred to, that the attachment before judgment enures for all successive execution applications for the first or the second or the third only. Its period of life continues until the decree is either set aside or satisfied & discharged. It becomes an attachment in execution when you execute the decree on the basis thereof, or in other words, to use the words of Sir George Rankin C. J. which I have just now quoted, when, you want to make that the basis of the sale that you are going to hold for the purpose of execution and realisation of the decree. I have support for my view from a case of Patna in, the case of 'RAMDHARI LAL V. NATHURAM', 6 Pat L J 332, in which. Mr. Justice Das at page 335 says,
'That) Order 38, Rule 11 gives the attachment before judgment the effect of an attachment in execution'
and he distinguishes the order concerned being an order in the suit as from an _order made in execution. The facts of that case were that the plaintiff obtained an attachment befoi'e judgment. Subsequently, he procured, a decree. After that decree another person obtained a second decree against the same judgment-debtor and attached the property in another Court. The latter Court sold the property. The question arose whether it had the jurisdiction, to sell. The question turned upon the construction of Section 63 which settles the question of jurisdiction, as between several Courts in which decrees have been passed and attachments have been effected. Mr. justice Das sitting with Mr. Justice Adami held that the latter Court had no jurisdiction to sell and when he was confronted with the contention that so far as the former Court was concerned, he had not attached 'the decree' in execution and the attachment by him was an attachment before judgment, he replied by force of Order 38, Rule 11 that the 'attachment before judgment' becomes an 'attachment in execution'. From the report it is not clear whether in the former Court' an application for execution had in fact been made. But I am of the opinion that mere passing of the decree will not be sufficient for the purpose taut there should be an application for execution, as has been observed by Mr. Justice Woodroffe, Mr. Justice Mukerjt and, Sir George Rankin C. J. So far as the other Patna cases are concerned, they are with regard to Order 21, Rule 57. Those cases in Patna and Calcutta have been decided differently from those in Madras. I would then refer to a decision of the Allahabad High Court, reported in 'DURPATI BIBI v. RAM RACHPAL', 31 All 527 at pages 528-529. I would quote a passage or two from the judgment as reported.
'In the next place we are of opinion that the view taken by the Court below is erroneous. The property in question was attached before judgment in the suit of Chunni Lal. When he obtained his decree a re-attachment of the property was not necessary (Vide Section 490 of Act No. XIV (14) of 1882); so that after the passing of the decree the attachment already made was to be deemed to be an attachment' in execution of the decree. On the 23rd of January 1899, an application was made for execution of Chunni Lal's decree and it was prayed that the property already attached might be sold by auction....'
'The plaintiff's application for execution remained pending till the 23rd of November, 1899 when it was finally struck off the files for reasons to which it is not necessary to refer. It is thus clear that 'at the date on which the disputed property' was sold under the orders of the Munsif the same property was under attachment 'in execution of decrees pending in the Court of the Subordinate Judge.'
Thus the proposition that an attachment before judgment became an attachment in execution gets support from all the High Courts. It has been argued that an attachment before judgment may be deemed to be an attachment in execution but it is not an attachment in execution This contention has absolutely no force. Such a contention could be advanced with cogency if the terms 'attachment in execution' were used as a technical term or a term of art and defined in the Code. I will say, it is an attachment in execution in effect, in operation, and in fact, after the execution petition is filed and the properties are sold. If this is not so, the attachment before judgment cannot be taken to be the basis of the sale that is effected. As my learned brother Das J. has dealt with all the rulings of the Madras High Court including the one in the Pull Bench case I do not consider it necessary to deal with them again.
55. I will conclude by saying that I agree withhis opinion and hold that Article 11 will governthe suit for the purpose of limitation. This judgment shall now be placed before the Bench havingseisin of the appeal.