R.N. Misra, J.
1. Defendant No. 1 is the appellant against a confirming judgment of the learned District Judge of Koraput in a suit under Order 21, Rule 63, C.P.C.
2. The plaintiff sued for declaration of title and possession over the crops raised on the suit land locally known as Khari Bhumi which had been attached by defendant No. 1 in E. P. Nos. 497 to 500 of 1957 on the file of the Revenue Divisional Officer, Nowrangpur, while he was executing a decree for arrears of rent. The contention raised by the plaintiff was that he was a lessee under his father in respect of the land from which the crops had been attached and harvested. Defendant No. 2 was the debtor and in an execution against him the crops raised by the plaintiff could not be proceeded against. The plaintiff further asserted that there was a partition between defendant No. 2 on one side and his sons including the plaintiff on the other, and the plaintiff was possessing the land from which the crops were harvested, on an annual rent of Rs. 100/-. The claim in the execution case was rejected. Thereafter he came forward with a suit under Order 21, Rule 63, C.P.C.
3. Defendant No. 2 supported the plaintiff. But defendant No. 1 took the stand that there was no partition between defendant No. 2 and his sons and contended that the plaintiff was liable for the rent which was a liability against the family. A further stand was taken that the suit was bad for want of notice under Section 53(1) of the Orissa Court of Wards Act, 1947 (Act 36 of 1947).
4. The trial Court came to hold that the landlord was entitled to recover arrears of rent by applying under the provisions of the Madras Estates Land Act in respect of the estate even after vesting as the dues were for the period before vesting and were protected under Section 49(1) (iii) of the Orissa Estates Abolition Act, 1951 (Act I of 1952); there was no partition in the plaintiff's family and the plaintiff had liability to meet the demand; the land attached, however, was not within the writ issued for attachment and though such a plea had not been taken there would be no prejudice in looking into the court's record for the finding that this land was not covered by the writ of attachment; and no notice was necessary in the present case.
5. On an appeal by defendant No. 1, the learned District Judge received the writ of attachment as additional evidence and marked it as Ext. 4. He concluded that the family was joint and that finding of the court below was not challenged and on a consideration of the materials on record he dismissed the appeal and confirmed the findings of the trial Court. It is against this appellate judgment that the present Second Appeal has been carried.
6. Mr. Rao raises three contentions in the appeal. They are:--
(1) Once it Is held that the family was joint it must be taken that the present plaintiff was also a judgment-debtor and, therefore, his objection could be only one under Section 47, C.P.C. and an independent suit at his instance was not maintainable.
(2) The plaintiff having not taken the plea in the suit that the disputed land was not attachable on account of non-mention of it in the writ of attachment, the court below went wrong in receiving a document subsequent to the closure of the trial for the purpose. The case now accepted by the Court, is different from what was made out in the pleadings.
(3) Notice for a suit under Order 21, Rule 63, C.P.C. was mandatory and the provision of Section 53(1) of the Orissa Court of Wards Act requires such notice as a condition precedent to a suit. Admittedly no notice having been given the suit was not maintainable.
Each of the contentions of the appellant may now be examined.
7. Coming to the first one, the trial Court found and before the lower appellate Court it was not challenged that the family continued to be joint. If the family continued to be joint, the decree against the Karta defendant No. 2 would really be one creating liability against all the members of the family. In that view of the matter there is substance in Mr. Rao's contention that the plaintiff must be taken to be one against whom the rent decree had been passed and, therefore, any objection from him can only be sustained under Section 47, C.P.C., and a separate suit is not maintainable. Therefore, the present suit could not have been sustained.
8. Coming to the second question. I do not think much of objection can be raised. Once it is found in the judicial records that the warrant of attachment did not relate to the disputed property it was open to the courts below in exercise of their discretion to receive the said document and proceed on its basis to give relief as was available in law. After all, the warrant was one which had been made by the court on the basis of defendant No. 1's application, and it was a part of the proceeding to which defendant No. 1 was a party. In the circumstances, there can be no material prejudice to defendant No. 1 in receiving the document for the purposes of evidence. I rule out the contention of Mr. Rao on this score.
9. Coming to the last question raised by Mr. Rao, Section 53(1) of the Orissa Court of Wards Act provides thus:--
'(1). No suit relating to the person or property of any ward shall be instituted in any civil court until the expiration of two months after notice in writing has been delivered to or left at the office of the Collector specified in the notification under Section 21 or the Collector appointed under Section 50, as the case may be.'
Admittedly, defendant No. 1's estate was under the Court of Wards by the date of the suit and he has also been described in such a manner, the description being, 'Sri Ramkrishna Dev, being a ward under the Court of Wards Act, represented by the Collector, Court of Wards, Koraput.' Mr. Rao relies upon a decision in AIR 1966 SC 1068, Sawai Singhai v. Union of India, where the Supreme Court clearly laid down that in a case in which notice under Section 80, C.P.C. was mandatory, even if the suit be one under Order 21, Rule 63, C.P.C. such notice would be a condition precedent to maintaining the suit. The views expressed in some earlier decisions, even of the Judicial Committee and of the Patna High Court, were not followed and it was said that the provisions of Section 80, C.P.C. are mandatory and cannot be waived until the defendant waived it.
10. Mr. Misra, learned counsel for the plaintiff, contends that the case in question does not come within the purview of Section 53(1) of the Orissa Court of ,Wards Act. He lays emphasis on the term 'property of any ward' and contends that in the present case there was no property of any ward in issue. According to Mr. Misra, until the right of the ward in the property was ascertained, it cannot be his and mere attachment cannot be deemed to create property interest in praesenti in the attached property in favour of the ward. 'Property' as indicated in Section 53(1) has to be given a wider meaning and any interest in property must be covered by the term. Since it is a clause giving protection and it has to be given a liberal construction, I adopt the contention of Mr. Rao and hold that in the present case notice was mandatory and in the absence of notice the suit was not maintainable. The courts below went wrong in overlooking this legal requirement. Therefore, the judgments and decrees of the lower courts cannot be sustained. The appeal is allowed. The plaintiff's suit is ordered to be dismissed but without costs. Parties will bear their own costs throughout.