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Chet Singh Vs. Anjuman Imdad Bahmi Qarza - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H318
AppellantChet Singh
RespondentAnjuman Imdad Bahmi Qarza
Cases ReferredKannanore Bank Ltd. v. Pattar Kandy Aryanveettil Madhavi A.I.R.
Excerpt:
.....writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the plaintiff society failed to file a suit under order 21, rule 63, civil p. 295. 5. to appreciate the point of law involved in this appeal it will be well to notice the history of legislation on this point. he failed to notice that the result of the order, dated 11th february 1935 was that the property was not released from attachment but was allowed to be sold and the..........kharak singh, was one of the creditors of one arjan singh, who had two other creditors, both named chet singh, one being chet singh son of budh singh and the other chet singh son of kakar singh. the house in suit was bought by the plaintiff society from the said arjan singh on 4th of november 1933 by the sale-deed ex. p. 4. chet singh son of budh singh in execution of his decree against arjan singh got this house attached and the plaintiff society filed objections under order 21, rule 58, civil p.c., which were summarily dismissed on 1st march 1934. on 19th march 1934, the plaintiff society instituted the usual suit under order 21, rule 63, civil p.c. which was decreed on 31st january 1936.2. in the meantime, chet singh son of kakar singh, the present appellant, got the same house.....
Judgment:

Harnam Singh, J.

1. To appreciate the point of law involved in this case the-facts must be set out in some detail. The facts are that the plaintiff, the Anjuman Imdad Bahmi Qarza of Bodiwala Kharak Singh, was one of the creditors of one Arjan Singh, who had two other creditors, both named Chet Singh, one being Chet Singh son of Budh Singh and the other Chet Singh son of Kakar Singh. The house in suit was bought by the plaintiff Society from the said Arjan Singh on 4th of November 1933 by the sale-deed Ex. p. 4. Chet Singh son of Budh Singh in execution of his decree against Arjan Singh got this house attached and the plaintiff Society filed objections under Order 21, Rule 58, Civil P.C., which were summarily dismissed on 1st March 1934. On 19th March 1934, the plaintiff Society instituted the usual suit under Order 21, Rule 63, Civil P.C. which was decreed on 31st January 1936.

2. In the meantime, Chet Singh son of Kakar Singh, the present appellant, got the same house attached in execution of his decree and the plaintiff society again put in objections under Order 21, Rule 58, Civil P.C. on 21st January 1935, but these objections were dismissed with costs on 11th February 1935 on the ground that the objections were frivolous as there was already a declaratory suit pending under Order 21 Rule 63, Civil P.C. In passing this order, the Sub-Judge appears to be under the wrong impression that Chet Singh against whom the declaratory suit was pending was the same Chet Singh at whose instance the house was then under attachment by his Court. The plaintiff Society failed to file a suit under Order 21, Rule 63, Civil P. C. against Chet Singh son of Kakar Singh who succeeded in obtaining possession of the house in execution of his decree with the result that the plaintiff Society brought a suit for possession of the house on 11th March 1941. The suit was decreed in the first place on 81et March 1942 and the appeal preferred by Chet Singh against the decree of the trial Court was dismissed by the Senior Sub-Judge on 8th July 1942.

3. Chef Singh, son of Kakar Singh preferred a second appeal in the High Court and by an order dated 8th February 1944 the case was remanded, since apparently at that stage there was still some confusion regarding the identity of the two Chet Singhs. The suit has, however, again been decreed in the plaintiffs' favour by the trial Court as also by the Court of first appeal.

4. Chet Singh, son of Kakar Singh again came to the High Court in second appeal and the appeal was dismissed by Falshaw, J. on 22nd April 1946. The present appeal under Clause 10 of the Letters Patent is directed against the judgment of Falshaw, J. in R.S.A. No. 1882 of 1944, decided on 22nd April 1946.

4a. The learned Single Judge has dismissed the appeal on the ground that the order dated 11th February 1935, dismissing the application under Order 21, Rule 58, Civil P.C., appears to be one refusing to adjudicate on the merits of the dispute and that it is covered by the rule laid down in Abdul Kadir v. Somasundararn Chettiar A.I.R. 1923 Mad. 76; Mukhram Pandey v. Arjun Misser A.I.R. 1934 Pat. 51l; Lakshmi Ammal v. Kadiresan Chettiar A.I.R. 1921 Mad. 488 and Kachinamthodi Parambil Saharabi v. Chekkutti A.I.R. 1923 Mad. 295.

5. To appreciate the point of law involved in this appeal it will be well to notice the history of legislation on this point. Sections 280, 281, 282 and 283, Civil P.C., 1877, corresponded to Rules 60, 61, 62 and 63 of the present Code. Section 283 of the old Code expressly mentioned the orders passed under Sections 280, 281 and 282 of the Code, whereas Section 63 makes no mention of Rules 60, 61 and 62. The words of Rule 63 read in theirs natural sense include all orders passed under the preceding Rules 58, 60, 61 and 62. In the old Code the only conclusive orders were those passed after investigation either in favour of or against the objector, but not those orders which were passed summarily dismissing the objections on the ground that it was made too late as provided in Section 278 of the old Code. The scope of Rule 63 of the present Code is not, however, so confined as to exclude orders passed under Rule 58 from its operation and there is nothing in Rule 63 to prevent finality attaching to orders passed under Order 21, Rule 58 of the present Code.

6. The argument that prevailed with the learned Single Judge was that the order in question was an order refusing to investigate the claim without deciding it and, therefore, was not hit by the provisions of Order 21, Rule 63 of the Code. He failed to notice that the result of the order, dated 11th February 1935 was that the property was not released from attachment but was allowed to be sold and the objection petition was dismissed. The order dated 11th February 1935 was certainly an order adverse to the claimant who sought the release of the property attached in execution of the decree of Chet Singh, son of Kakar Singh.

7. The application put in by the Anjuman Imdad Bahmi Quarza of Baodiwala Kharak Singh under Order 21 Rule 58, Civil P.C. was:

(1) That a house situate in village Baoidwala Kharak Singh, tehsil Fazilka, has been attached in execution of the decree of Chet Singh son of Kakar Singh decree-holder on the ground that it was the property of the judgment-debtor,

(2) That the judgment-debtor has not right, title or interest in the attached house which belongs to the objector on the basis of the registered sale deed dated 4th November 1933.

(3) That the objector has instituted a suit in the Court of the Subordinate 'Judge, Fazilka, about the attached house and the case comes up for hearing on 24th January 1935. The execution proceedings may be stayed pending the decision of the suit for declaration.

(4) That the attached house be released and that the objector may be awarded costs.

8. There can be no dispute in this case that the application put in by the plaintiff-respondent was an application within the meaning of Order 81, Rule 58, Civil P.C. The order of the Subordinate Judge on this application was that the application be dismissed with costs. That being so, the order was against the claimant for in substance and in effect it negatives the claimant's claim and refused to recognise it. Obviously, the order fell under Article 11, Limitation Act, 1908, and the objector not having instituted a suit under Order 21, Rule 63, Civil P.C., to establish the right which he claimed to the property in dispute in the objection petition, the order dated 11th February 1936 became conclusive.

9. In my view, the question whether an order is against the claimant or not does not |depend on whether the Court has investigated the claim or not. It really depends upon the 'effect of the order and if in substance and in effect it negatives the claimant's claim and refuses to recognise it, the order is an order which falls under Order 21, Rule 63, Civil P.C. and Article 11, Limitation Act. As stated above, the result of the order dated 11th February 1935 was that the property was not released from attachment but was allowed to be sold and that being so the order was certainly an order adverse to the claimant who sought in the objection petition to prevent the property from being sold.

10. The learned Single Judge has based his judgment on Abdul Kadri v. Somasundaram Chettiar A.I.R. 1923 Mad. 76, Mukhram Pandey v. Arjun Missir A.I.R. (21) 1934 Pat. 511, Lakshmi Ammal v. Kadiresan Chettiar A.I.R. (8) 1921 Mad. 488 and Kachinamthodi Parambil v. Chekkutti A.I.R. (10) 1923 Mad. 295.

11. In Abdul Kadir v. Somasundaran Chettiar A.I.R. 1923 Mad. 76, the objection petition did not purport to be under Order 21 Rule 58, Civil P.C. and the order was 'sale is concluded already and the decree-holder set off the decree amount; Dismissed.' That being so, it was held that there was no order on a claim preferred within the meaning of Order 21, Rule 58, Civil P.C. The facts in the present case are wholly different from the facts in Abdul Kadir v. Somasundaran Chettiar A.I.R. 1923 Mad. 76, for in the present case the objection petition is covered by Order 21, Rule 58, Civil P.C. and the order passed on the objection petition negatives the claim of the objector.

12. In Mukharam Pandey v. Arjun Missir A.I.R. (21) 1934 Pat. 511 a person who had only acquired an interest in the property in dispute subsequent to its attachment had filed objections under Order 21, Rule 58, Civil P.C., and his objections were dismissed on the ground that he was not competent to object, and it was held that a suit brought by him more than a year after the dismissal of his objections was within time as the objection petition did not fall within the meaning of Order 21, Rule 58, Civil P.C., and the order dismissing the objections did not come within the purview of Rule 63, Civil P.C.

13. In Lakshmi Ammal v. Kadiresan Chettiar A.I.R.1921 Mad. 488 it was held by a Division Bench that an order on a petition under Order 21, Rule 58 reading 'Sale stopped. The claim cannot be investigated by this Court. Petition dismissed' was not an order negativing the right set up in the claim petition so as to necessitate the order being set aside within one year of its being passed. Obviously, this was not an order within the meaning of Rule 63 for the petition was dismissed because the power to investigate was in another Court.

14. Finally, in Kachinamthodi Parambil v. Chekkutti A.I.R. 1923 Mad. 295 it was held that an order notifying claims to intending bidders without investigating them was improper and that it did not amount to an order against the claimant within the purview of Order 21, Rule 63. The facts in Kachinamthodi Parambil v. Chekkutti A.I.R. 1923 Mad. 295 were that the suit property had been attached in execution of a decree passed by defendant 1 against a certain person and the plaintiff preferred a claim stating that the judgment-debtor had only a share in the property and that he himself was entitled to a moiety thereof. On the claim petition the Court made the order:

The petitioner's contention is that the defendant has only a share in the property and that the other shares belong to the petitioner and some others. Whatever right the defendant has will pass by the sale. The petition does not require any further investigation. The claim put forward by the petitioner will be notified in the sale proclamation.

The sale was held and defendant 1 became the purchaser. The plaintiff instituted the suit to recover his half share of the property from defendant 1 and it was contended on behalf of the latter that the order on the claim petition set out above amounted to an order against the plaintiff under Rule 63 of Order 21, Civil P.C. and that the suit, having-been filed long after the lapse of a year from the date of the order, was barred under Article 11, Limitation Act. Spencer, J. repelled the contention of the defendant on the ground that the claimant's petition was not dismissed and Venkatasubba Rao J. found that the order in question was not in effect and in substance one negativing the plaintiff's claim. The order shows that the objection petition was not dismissed and in fact the claim petition was allowed, for the Court made the order: 'What-ever right the defendant has will pass by the sale.' This authority also does not help the plaintiff in the present case.

15. As stated above, the provisions of Order 21, Rule 63 are more comprehensive than the provisions of Section 283 of the old Code and the change in the language of Article 11, Limitation Act, 1908, shows that Article 11, Limitation Act, is not restricted to those cases only in which an investigation has taken place. The point came up for examination in Ran Bahadur Singh v. Salig Ram where it was held that Article 11, Limitation Act applied to all orders in claim proceedings whether they are passed after full investigation under the claim section of the Code or are passed without any investigation at all.

16. It was held that if an objection is filed under Order 21, Rule 58 and the Court refuses to investigate the claim (rightly or wrongly) and refuses to release the property from attachment and dismisses the objection, it cannot be said that the order was not an order within the meaning of Order 21, Rule 63, Civil P.C.

17. Again in Subedar Singh v. Ramprit Pandey : AIR1929Pat116 it was held that an order dismissing objections made under Order 21, Rule 88, Civil P.C. whether it is an order disposing of the case on the merits or whether it is an order which holds that the objections are not entertainable on the preliminary ground that a certain legal provision is a bar to the maintainability of the objections is a disposal of the application under Order 21, Rule 58 and therefore the order passed is an order contemplated in Order 21, Rule 63, Civil P.C., and Article 11, Limitation Act.

18. In Nawal Kishore v. Khiali Ram A.I.R. 1929 Lah. 865 Tek Chand, J. expressing the opinion of the Court with which Johnstone, J. concurred held that if a person chooses to take advantage of a summary procedure, he must suffer its disadvantage as well as enjoy its benefits. It was further held that where a mortgagee without possession chooses to prefer an objection under Order 21, Rule 58, on the strength of his alleged mortgage, and an adverse order is passed against him in the objection proceedings such decision is conclusive against him unless he brings a declaratory suit within one year.

19. The same view has been held in Kannanore Bank Ltd. v. Pattar Kandy Aryanveettil Madhavi A.I.R. 1942 Mad. 41 where the Court held that the test to see whether an order is covered by Rule 63 is whether the order is against the claimant or the decree-holder, but that does not mean that the order must involve an adjudication on the merits after investigation. Applying this test to the present case, there is no manner of doubt that the claim put in the objection petition was negatived by the executing Court on 11th February 1935 and that the plaintiff in the present suit seeks to establish the very claim which was negatived by the Court on 11th February 1935.

20. For the reasons given above, I am of the view that the order dated 11th February 1935 was an order within the meaning of Rule 63 of Order 21, Civil P.C. and that the failure of the objector-plaintiff to institute a suit to establish the right which he claimed to the property in dispute made the order conclusive against him. I would, therefore, accept the appeal, set aside the judgment and decree in B.S.A. 1382 of 1944 and also the judgments and the decrees of the Courts below and dismiss the plaintiff's suit.

20. As the respondent is not represented in this Court and the protracted litigation has arisen by reason of an unfortunate mistake as to the identity of the two Chet Singhs I would leave the parties to bear their own costs throughout.

Bhandari, J.

I agree.


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