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Bharat Singh Vs. Sheo Parshad Giani Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberRegular First Appeal No. 28D of 1965
Judge
Reported inAIR1978Delhi122; ILR1977Delhi695
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 58
AppellantBharat Singh
RespondentSheo Parshad Giani Ram and ors.
Advocates: S.N. Chopra,; G.N Aggarwal,; J.R. Goel and;
Cases ReferredIn Chet Singh v. Gujar Singh and
Excerpt:
.....at narela, and alleged to be coparcenery property were attached in execution of the decree. the suit was decreed, and the decision was affirmed in appeal. the auction sale of the said three ships in execution of the decree dated 18-3-1950, however, took place on july 17, 1962. the present suit was filled for declaration that these three ships belonged to the appellant and his brother, and that the sale of the shops was null and void and did not confer any rights on the auction purchasers. the trial court dismissed the suit as barred by limitation. hence, the present appeal :--; that there is no bar to a second application under order 21, rule 58 civil procedure code being filed, if the execution application was dismissed in 1953, and despite the appellant not having filed a suit under..........attached in execution of a decree, there are two courses open to him. he may straightway file a suit claiming the appropriate relief, or he may file an objection-petition under '0. 21, r. 58 of the code of civl procedure to the court executing the decree. the remedy provided thus is not only summary but is also concurtent and results only in a summary investigation and not a full trial of the issues between the parties. the party aggrieved by an order passed after such investigation has to file a suit under r.63 within one year to establish the rights which he claims to the property in dispute. if the suit is instituted by the decree-holder, against whom an order has been passed on objections filed under 0. 2.1. r. 58 releasing the property from attachment, the right which he claims.....
Judgment:
ORDER

21, R. 58 of the Code provides a summary remedy to third parties, i.e., persons other than judgment-debtors or their legal representatives for raising objections to the attachment of the property. Where a third party has a claim or an objection to the attachment of property attached in execution of a decree, there are two courses open to him. He may straightway file a suit claiming the appropriate relief, or he may file an objection-petition under '0. 21, R. 58 of the Code of Civl Procedure to the Court executing the decree. The remedy provided thus is not only summary but is also concurtent and results only in a summary investigation and not a full trial of the issues between the parties. The party aggrieved by an order passed after such investigation has to file a suit under R.63 within one year to establish the rights which he claims to the property in dispute. If the suit is instituted by the decree-holder, against whom an order has been passed on objections filed under 0. 2.1. R. 58 releasing the property from attachment, the right which he claims in the suit is the right to have the property attached in execution of the decree against the judgment-debtor. If, on the contrary, the plaintiff is the objector, who has been unsuccessful in the objection proceedings before the executing Court, the right which he claims in the suit under 0. 21, R. 63 is the right to have the property in dispute released from attachment on the ground that it belongs to him and not to the judgment-debtor. Subject to the decision in that suit, the order passed by the execution Court is conclusive. It is, however, essential that the order on the application under 0. 21, R. 58 must be subsisting when the sun is filed. If the objections under O. 21, R.58 are dismissed and the attachment is upheld and for some reason or the other the attachment subsequently comes to an end, the order upholding the attachment would, in the circumstances, become defunct and in such an event there is no purpose in filing a suit to have the attachment set aside.'

(17) In the same case the bench explained that the words, 'such attachment' in Rule 58 point to the conclusion that the order passed on the objections is operative only in respect of the particular' attachment against which objections are filed. If that attachment ceases for any reason, there is nothing further to challenge.

(18) In Najimunnessa Bibi Vs . Nacharaddin Sardar : AIR1924Cal744 , a bench of that High Court also took the same view as was later taken by the Punjab High Court. It was held that where an attachment was released within one year after the order dismissing the claim case and execution proceedings were again taken after the lapse of several years, a title suit brought to resist the attachment was not barred by limitation. Dealing with the phrase

'SHALLbe conclusive' in Order 21, rule 63 Civil Procedure Code . Rankin, J. observed: The meaning of the words 'shall be conclusive' is that the act of the Court is to be valid unless there is a suit. It means that the attachment held valid in the claim case shall be valid and the attachment removed shall be as though it never was, so far as the parties are concerned. The rule seems to mean that subject to a suit factum valet the act of the Court shall not be questioned save in that way. The effect of the decision as to possession in other proceedings in which that question may again arise is not the matter to which the words 'shall be conclusive' are directly addressed. The principle is that the object of making a claim in execution is to remove the attachment, that when the attachment is withdrawn that object is gained and that if there exists no attachment, or proceeding in execution on which the order in the claim case can take effect, one is not bound to bring a suit complaining of such order. It is no answer at all to say that a decree-holder's suit ander R. 68 has always to be brought after the attachment is removed. If the decree-holder succeeds, he gets the attachment restored as at the date it was made and that is what he fights for.'

(19) In Radhabai Gopal Joshi v. Gopal Dhondo Joshi and another A.I.R. 1944 Bom 50 again the above noted views were reiterated.

(20) It was urged on behalf of the respondents that suppose the attachment lapses and suit is not filed, then what would be the position Would not the rule of conclusiveness apply if on an earlier occasion the suit had not been filed The answer is to be found in the observations of the Rankin, J., noted above. Further, in Kumara Goundan v. Thevaraya Reddi and others A.I.R 1925 Mad 1113 It was observed by Ramesam, J. :

'INthe first place, if it is conceded that the order becomes useless and inoperative when the attachment ceased within one year of the order, this is a concession not allowed by the literal reading of the section. Secondly, if the operativeness of an order on a claim petition is to be regarded as conditional on the continuance of the attachment, it is difficult to see why the cessation of the attachment within one year should destroy the operativeness and the cessation of it beyond one year should have just the opposite effect merely because a suit to set aside could not be brought more than one year after the date of the order.'

(21) In Chet Singh v. Gujar Singh and others A.I.R. 1931 Lah 74 Addison, J. observed : 'The order under 0.21, R.63, is conclusive in the sense that it cannot be agitated again in the execution proceedings in which it was passed unless a suit is brought within one year of the date of the order, i.e., that it is conclusive as between the claimant and the decree-holder who is proceeding against the property. If, however, the decree-holder raises the attachment within a year, obviously

'THERE is no reason why the claimant should institute a suit to set aside the order as there is no attachment in force. It makes no difference if the attachment is raised after the termination of on,' year. It does mean that in those proceedings the claimant is running a risk and will be estopped from contesting the decree-holder's right to proceed against the property, but if the decree-holder does not sell the property and the decree is satisfied otherwise, the fact that the attachment was raised more than a year after the date of the order on the claim does not make any difference.'

(22) In Ramchandra Singh and others v. Mt. Bibi Khodaijatut Kubra and others : AIR1945Pat369 a bench of that court noticed with approval the views of the Calcutta and Madras High Courts and laid down the proposition that the conclusiveness of an order in a claim case contemplated by Order 21, rule 63 Civil Procedure Code . is conditional on the continuance of the execution proceedings and the attachment ensuing there from, and that consequently when an order is made on an application under Order 21, rule 58 of the Code dismissing a claim but the sale itself held in that execution proceedings is set aside and the attachment ipso facto comes to an end, a subsequent suit brought beyond one year by the claimant turn a declaration of his title is not barred under Article 11, Schedule I of the Limitation Act. It was further held that it was immaterial that the execution proceedings came to an end within or beyond one year of the date of the order in the claim case.

(23) Order 21, rule 57 Civil Procedure Code . has some relevance and may be noticed at this stage. This provision reads as under :-

'57.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.'

If the execution application is not prosecuted and is dismissed for default it has the same effect as the dismissal of the execution application otherwise. The consequence of the dismissal of the execution application is that the attachment ceases. If the attachment ceases any suit filed under Order 21, role 63 Civil Procedure Code . would become infructuous and will have to be dismissed for there would be nothing which the plaintiff could claim and there would be nothing in respect of which the plaintiff could feel aggrieved.

(24) Apart from the concession by the learned counsel that the execution application was dismissed on January 10, 1953, this fact stands established on a reading of paragraph ll(g) of the grounds of appeal in Execution First Appeal No. 2-D of 1963 filed in the High Court of Punjab, Circuit Bench at Delhi which was brought on record. The trial Court was in error in not relying upon this substantive piece of evidence and treating August 19, 1950 as the date from which limitation had to be computed for the filing of the present suit. Inasmuch as the execution application stood dismissed on January 10. 1953 the appellant was not required to prosecute his claim by a suit under Order 21, rule 63 Civil Procedure Code . on dismissal of his claim petition on August 19, 1950. The date of December 1, 1963 was the only relevant date from which the period of limitation had to be computed.

(25) Mr. J. R. Goel then sought to sustain the decree on the ground of rest judicata. He relied on Mangru Mahto and others v. Thakur Taraknathji Tarkeshwar Nath and others, : [1967]3SCR125 . The decision relied upon does not help to advance the contention of the learned counsel. It cannot be said that the dismissal of the claim petition in 1950 would operate as rest judicata to the claim petition preferred in 1962. In the case relied upon it has been clearly held that a claim under Order 21, rule 58 Civil Procedure Code . is not a suit or a proceeding analogous to a suit. An order in the claim proceedings does not operate as rest judicata. It is because of rule 63 that the order becomes conclusive. It is further clarified in this very decision that the effect of Rule 63 is that unless a suit is brought as provided by the rule, the party against whom the order in the claim proceedings is made, or any person claiming through him, cannot reagitate in any other suit or proceeding against the other party or any person claiming through him the question whether the property was or was not liable to attachment and sale in execution of the decree out of which the claim proceedings arose, but the bar of Rule 63 extends no further. Mangru's case was not considering the effect of the attachment being raised or ceasing to be operative) nor was it considering a second claim petition under Order 21, rule 58 Civil Procedure Code . being filed on a fresh attachment being made.

(26) Mr. Goel also relied upon Sant Lal and others v. Firm Udhi Ram Walait Ram, A.I.R 1938 Lah 568 arid urged that no claim petition under Order 21, rule 58 Civil Procedure Code . was competent once the sale had taken place because the attachment ipso facto stood determined on the property being sold. The bench, no doubt, laid down the above proposition but it is pertinent to note the further observations in the judgment of Addison, J., namely,

'IT is true that by sub-rule (2) of that Rule (Rule 58) a Court is not bound to postpone the sale pending the investigation of the claim but usually it should do so except where it is of opinion that the claim is frivolous or vexatious or meant to delay the execution proceedings.'

If that be the correct proposition then, and we say it with respect, the proposition laid down by the bench does not appear, to be correct. What happens to a claim petition filed before sale where the sale is not postponed and it does take place Does such a claim become infructuous If the proposition laid down by the Lahore High Court was correct then a claim petition under Order 21, rule 58, though otherwise having merit, may stand defeated because the court did not stay the sale and sale lakes place. Indeed, it is keeping in view the uncertainty of the proposition propounded in the above noted decision of the Lahore High Court, which followed the views of Calcutta, Patna and Rangoon High Courts, that Rule 58 of Order 21 has been amended recently and it has been clarified that no claim or objection under Rule 58 shall be entertained where, before the claim is preferred or objection is made the property attached has already been sold.

(27) Giani Ram appearing in person for respondent No. 1 wanted to address us on the merits of the suit but we did not allow it. He made no submissions on the question of limitation.

(28) In this view of the matter we accept the appeal, set aside the finding of the trial Court that the suit is barred by limitation and remand the suit for trial in accordance with law. In the circumstances of the case there will be no order as to costs in this appeal.

(29) We now come to Civil Revision No. 111-D of 1964. This revision petition has been filed by Bharat Singh against an order dated December 19, 1963 passed by a Sub Judge 1st Class, Delhi, dismissing Bharat Singh's application for review of an order passed by the same Sub Judge on January 5, 1963, The application was moved under Section 114 and Order 47, rule I read with Section 151 Civil Procedure Code . In regard to the order dated January 5, 1963 confirming the auction sale in Execution Case No. 452 of 1962. The Sub Judge dismissed the review application on the ground that as far as his court was concerned, there was no injunction order from the court of Shri R. L. Lamba, Sub Judge 1st Class, Delhi, either restraining the court or the decreeholders from getting the sale confirmed in the execution case started by M/s. Sheo Parshad Giani Ram, respondent No. 1 herein. There was some controversy as to whether the injunction order, as served on the decree-holder, respondent No. 1, was an injunction order 'till further orders' or was an injunction order operative only till January 4, 1963.

(30) In our opinion, it is not necessary to go into the facts of the case because the impugned order dismissing the review application can be upheld on a preliminary point, namely, that no review petition under Order 47, rule I Civil Procedure Code . could be filed by Bharat Singh.

(31) Order 47, rule I Civil Procedure Code . reads as under :-

'1.(1) Any person considering himself aggrieved :-

(A)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(B)by a decree or order from which no appeal is allowed, or

(C)by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.'

On a very reading of the rule it is clear that a review application can be filled only by a party to the lis in which the order sought to be reviewed has been passed. It cannot be preferred by a third party. It was urged on behalf of the petitioner that the phrase 'any person considering himself aggrieved' would include anyone who is adversely affected by the impugned order, whether that person is or is not party to the list in which the impugned order has been passed. We do not agree. As will be apparent from a reading of the rule any person considering himself aggrieved by a decree or order may apply for review provided he can establish that he 'from the discovery of new and important matters of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made.' This postulates that the person applying for review has to satisfy two conditions, namely, that he is aggrieved by the order and also that he for the reasons mentioned was not in a position to bring that fact to the notice of the Court earlier which resulted in a wrong order being passed. If these two conditions are necessary before a review application can be moved, it follows that the review application has to be made by a person who was a party to the list decided by the impugned order or decree.

(32) No authority contrary to the view that we have expressed above was cited, nor was any authority cited in favor of the view that we have expressed. We are, however, fortified in taking the view that we have taken on the same principle that a decree or order adversely affecting a person who is not a party to the list in which that order or decree is passed is in law not binding on him. Such a person, thereforee, can ignore the order or decree which adversely affects him and so, cannot apply for a review of that order or decree. He may take such other steps as may be available to him in law to protect his rights as and when the order or decree adversely affecting him is sought to be enforced so as to jeopardise his rights. (See 61 Indian Cases 534).

(33) We, thereforee, dismiss this revision petition but in the circumstances of the case make no orders as to costs.

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