1. The appellant in Second Appeal No. 424 of 1961 is the plaintiff; while the appellant in Second Appeal No. 539 of 1961 is the defendant in Civil State No. 97 of 1957 filed in the Civil Court at Sidhpur. The circumstances under which these two Second Appeals arise may be briefly stated.
2. The subject-matter of this dispute is a house at Sidhpur, and it belonged to one Alihussain Mahmadalli Iqbal. On 6-11-1952. Alihussain entered into an agreement of sale (Exh. 120) of this house with the plaintiff and the sale price was fixed at Rs. 8,000, out of which an amount of Rs. 2,500 was paid to Alihussain by the plaintiff on 6-11-1952. The balance amount of the purchase price has been paid by the plaintiff by the end of 1954. 6-11-1952, Alihusain put the plaintiff in possession of the house. The present defendant obtained a money decree against Alihussain on 15-2-1956 in suit No. 873 of 1954 in the Calcutta High Court. The present defendant-judgment-creditor filed Execution Application No. 75 of 1955 in the Court of the Civil Judge (Junior Division) at Sidhpur and in execution of the decree he got the house attached on 27th June 1955. The plaintiff thereupon filed a claim petition No. 19 of 1956 under O. 21, R. 58 of the Civil Procedure Code to get the attachment raised on the ground that he was the exclusive owner of the property. This claim petition was dismissed by the Court on 26th July 1957. The plaintiff, thereupon filed Civil Suit No. 97 of 1957 on 2-9-1957 asserting that he is the exclusive owner of the property and asking for a declaration that the property is not liable to attachment and sale in execution of the decree of the defendant and for an injucntion restraining the defendant from putting the property to sale in the Execution Application. In this suit the defendant contended that the sale agreement was not genuine and that it was executed to defeat the claim under the decree. He also raised two mor contentions to the effect that the judgment-debtor that is, alihussain was a necessary party in the suit and that the suit was not maintainable at the instance of the present plaintiff in view of the provisions of Section 53-A of the Transfer of Propety Act.
3. The learned trial Judge accepted all the contentions raised by the defendant and consequently dismissed the suit of the plaitniff. The plaintiff filed Civil Appeal No. 227 of 1959 on 19-10-1959 to the District Court at Mehsana. The appeal was heard and decided by the learned Assistant Judge in that Court. The learned Assistant Judge held that the Judgment-debtor was not a necessary party and that the provisions of Section 53-A of the Transfer of Property Act created no bar to the plaintiff's maintaining this suit. He also held that the agreement for sale was genuine and thatpossession was taken by the plaintiff under the agreement for sale on 6-11-1952 and that all moneys due under the agreement for sale had been paid to Alihussain by the plaintiff before the end of 1954. He also held that the agreement for sale was not made to defeat the creditors. He however, came to the conclusion that the intention of the parties. When the agreement of sale was executed by Alihussain, was to give the house as security for an amount of rupees 8,000. He, therefore, reversed the decree of the trial Court and passed a decree declaring that the suit house should be sold in Darkhast No. 75 of 1955 subject to the plaintiff's charge over it for Rupees 8,000. It is against this decree passed by the first appellate Court thatt plaintiff has preferred Second Appeal No. 424 of 1961 in so far as it declares that the property is liable to be sold in the execution application filed by the defendant while the defendant has preferred Second Appeal No. 539 of 1961 in so far as the first appellate Court has ordered the property to be sold subject to the plaintiff's charge over it.
4. Both these appeals were heard together. In Second Appeal No. 424 of 1961,Mr. S. N. Patel, learned Advocate for the appellant-plaintiff contended that under the provisions of Section 53-A of the Transfer of Property Act, the plaintiff acquires a right to possession of the property and he can protect this right of possession even by instituting a suit. He therefore, supported the conclusion of the lower Court on this point, namely, that the plaintiff can maintain this suit. He, however, contended that the first appellate Court was wrong in coming to the conclusion that the agreement was passed simply by way of security for the amount that the plaintiff had advanced, and was to advance to Alihussain upto Rs. 8,000. He urged that the first appellate Court should have held that he was the absolute owner of the house under the agreement for sale and therefore, should have granted him the releif for the declaration that the property cannot be sold in execution of the decree.
5. The contentions raised by the respondent-defendant are that the plaintiff has not acquired any right in the property and therefore, he cannot maintain this suit; that even if the plaintiff can maintain this suit, yet the defendant was not a person claiming under Alihussain and therefore, the suit of the plaintiff is not maintainable against him and that Alihussain-judgment debtor was a necessary party to this suit and he having not been joined, the suit of the plaintiff must fail.
6.Before we proceed to consider the merits of the case it will be necessary for us to decide as to the facts found by the lower appellate Court. The lower appellate Court framed point No. 4 as 'whether the alleged Banakhat and the subsequent sale is real and bona fide?' and the finding recorded thereon is in the negative. Mr. Zaveri, therefore, argued that the lower appellate Court has found the Banakhat as well as the subsequent sale-deed to be real and bona fide. He, therefore, urged that the lower appellate Court has held that the Banakhat is made with an intent to defeat and delay the claim of the creditors and therefore, the plaintiff's suit based on the Banakhat and the subsequent sale-deed should have been dismissed. Inour opinion, Mr. Zaveri's reading of the judgment of the lower appellate Court is not correct.it may be noted that the sale-deed was not executed in favour of the plaintiff until after the suit was filed. The plaintiff brought the suit, not on the basis of a sale-deed in his favour, but on the basis of a contract for sale in his favour. It is true that at the end of paragraph 12 os his judgment, the learned Assistant Judge has remarked; 'So, when ultimately Alihussain knew that the suit house would be lost for ever on being sold out by the creditors he has passed the sale deed to the plaintiff who is his Kulmukhtyar to oblige him.' This remark of the learned Assistant Judge does suggest that when the sale deed was passed by Alihussain he intended to defeat or delay the claim of his creditors. However, this circumstances has no relevance in this case, because the suit was not based on the sale deed. The suit was based only on the contract for sale and therefore, the intention of Alihussain at the time when the sale deed was executed is not at all material for the decision of this suit. It is true that if point No. 4 is read with the finding thereon, it would give an impression that the learned Assistant Judge also found that the Banakhat was not real and bona fide. On a reading of his judgment, however, it appears to us that the negative finding on point No. 4 is recorded by the learned Assistant Judge with reference to the sale deed alone. In paragraph 12 he discussed the question whether the agreement for sale is real and bona fide or is merely colourable. He considered the evidence on record and the reasons given by the learned trial Judge to hold that the agreement is not genuine. Having considered all the circumstances, the learned Assistant Judge has recorded his finding in the following words:-
'Now, when I have come to the conclusion that this Banakhat is genuine, and also have held that the entries in the account books about the payment of Rupees 8,000 are not bogus, we have to consider whether the sale in pursuance to this agreement is real or not.'
There is, therefore, a clear finding recorded on a consideration of the evidence on record, that the Banakhat is genuine. In paragraph 13 of his judgment the learned Assistant Judge considered the finding of the trial Court that the transaction was intended to defraud the defendant and other creditors of Alihussain. Having considerd the evidence on the point the learned Assistant Judge came to the conclusion that 'the lower Court has wrongly held that the Banakhat has been effected to defraud the defendant and other creditors' There is, therefore, a clear finding recorded by the learned Assistant Judge that the Banakhat was not made with an intent to defeat or delay the claims of his creditors.
7. Mr. Zaveri then drew our attention to the fact that the learned Assistant Judge has further come to the conclusion that Alihussain did not intend to sell tproperty to the plaintiff by the Banakhat of 6-11-1952 and wanted to create merely a security for the money advanced to him by the plaintiff. It was categorically stated to us by Mr. Zaveri that it is not his case that the Banakhat was made by Alihussain to secure any money advanced by the plaintiff to Alihussain. It is clear from the plaint that the plaintiff also has not put forward any such claim. Mr. Patel, the learned advocate for the plaintiff also stated to us that, that was not his case at any time. This conclusion of the learned Assistant Judge, therefore, was not called for on the pleadings in the case. Such a contention was not raised by the defendant in the written statement and there was no issue raised on the point. Such a contention was also not advanced on behalf of the defendant before the trial Court. The learned Assistant Judge with respect to him was, therefore, in error when he sought to make out a case not pleaded by either party. Therefore, this part of his finding shoudl be ignored as being unnecessary for the purposes of this litigation. We will, therefore, proceed on the bais that the learned Assistant Judge has found that the contract for sale dated 6-11-1952 is genuine and that it is not made with a view to defeat or delay the creditors. The other facts found by the learned Assistant Judge are that the plaitniff has been put in possession of the property in pursuance of the said agreement by Alihussain and that the plaintiff has paid the whole of the purchase price to Alihussain and thus performed his part of the contract.
8. The plaintiff has based his claim on being a full owner of the property. Since there was no registered sale-deed in his favour at the time when he filed the suit. It is obvious, in view of Section 54 of the Transfer of Property Act, that he had not acquired ownership of the proeprty. The legal position is authoritatively stated by the Privy Council in Pir Bakhsh v. Mahomed Tahar, as follows:-
'By S. 54 of the Transfer of Property Act, a transfer by sale of tangible immovable property of the value of Rs. 100/- and upwards can be made only by a registered instrument. The land in question is admittedly worth more than Rs. 100/- and the defendant has no registerd instrument of transfer in his favour. The section expressly enacts that a contract for the sale of immovable property does not of itself create any interest in or charge on such property'. There is therefore no room for the application of the English equitable doctrine that 'a contract for sale of real property makes the purchaser the owner in equity of the estate'.'
9. Mr. Patel, the learned advocate for the plaintiff however stated that the plaintiff has pleaed facts entitling him to rely upon the provisions contained in Section 53-A of the Transfer of Property Act in support of his right to maintain the suit. Mr. Patel argued that the plaintiff has a right to defend his possession conferred upon him by the provisions of Section 53-A and that he can, even as a plaintiff, take steps to defend his possession. Section 53-A reads as under:-
'Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession inpart performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contrat, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been contemplated in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession other than a right expressly provided by the terms of the contract;
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
10. It is, therefore, necessary to consider whether Section 53-A confers any right on the plaintiff. On a consideration of the language of Section 53-A, it is clear that no right of any kind is conferred on a person who has been put in possession of the property under a contract for sake. The first three paragraphs of Section 53-A deal with the conditions of fulfilment of which the doctrine of part performacne will come to the help of the trensferee under a contract for sale. The fourth paragraph then provides as to what benefit is available to the transferee if the conditions set out in the first three paragraphs are fulfiled. If there is no registered document in favour of the transferee who has been delivered possession of the property by the transferor, the latter can immediately evict the transferee from possession of the property on the ground that he, that is, the transferee, had no legal right to the possession of the property. However, the fourth paragraph in Section 53-A protects the transferee from being dispossessed by the transferor or any person claiming under him, even though the transferee has not acquired any title to the property by a registered document. The fourth paragraph therefore, lays down that even though the contract, though required to be registered, has not been registered, or, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him is estopped from enforcing any right in respect of the property against the transferee or persons claiming under the transferee. The net effect is that so far as the transferor and persons claiming under him are concerned on the other hand, the former cannot assert any right in respect of the property against the latter. This provision merely debars the transferor or the persons claiming under him from asserting any right in respect of the property, in other words there is an estoppel against the transferor and persons claiming under him preventing them from enforcing anyright in respect of the property. This estoppel against the transferor would be available only to the transferee and persons claiming under him and not to any other person. The estoppel arises only against the transferor and persons claiming under him; it does not arise against any other person who may have a right to proceed against the property. It may also be noted that the provisions of this section do not contain any words conferring any right in the property on the transferee. The language of this section and particualrly of the fourth paragraph, does not suggets, directly or indirectly, that the transferee is clothed with any right in the propety. Since the transferor is estopped from enforcing any right in the property against the transferee, if and when the transferor seeks to enforce any such right, the transferee can always plead the estoppel against the transferor and thus protect the possession that has been delivered to him by the transferor. In our opinion, the transferee has merely a right to plead estoppel, limited to case where the transferor or any person claiming under him seeks to enforce any right in respect of the property. It is this restricted right to plead estoppel which is, somewhat loosely, referred to in certain decisions as a right to defend his possession. We may make it clear that in our opinion, under the provisions of Section 53-A, the transferee does not get any right in respect of the proeprty. Section 53-A does not speak of the conferment of the right of possession by the transferor to the transferee. It merely speaks of the estoppel against the transferor preventing him from enforcing any right in the property against the transferee. Itis on account of this estoppel against the transferor that it is loosely spoken as if the transferee acquires a right to protect his possession. In our opinion, Section 53-A does not confer any right in respect to proeprty on the transferee to whom possession is delivered. The only right conferred by Section 53-A on the transferee in possession is a right to plead this estoppel against the transferor or persons claiming under him.
11. We will now refer to certain authorities on this point. In Probodh Kumar Das v.Dantmara Tea Co., Ltd. , the Judicial Committee of the Privy Council was concerned with the possession of a transferee under the proviions of Section 53-A of the Transfer of Property Act. The litigation concerned a Tea estate and the title to export quota rights which were available to the owner of the Tea estate. The plaintiff in that case was in possession of a portion of the Tea estate under an unregistered contract of sale. The defendant had, subsequent to the unregistered contract of sale, obtained a title to the estate, but was not in possession os it. The Tea Licensing Committee, recognsing the defendant as the owner of the estate, though out of possession assigned the export quota rights to him. The plaintiff thereupon brought a suit seeking to have it declared that the defendant had no right or title to the estate and that he was debarred from enforcing any right to the estate including the right to sell tea under the export quota allotted to him; the plaintiff also sought an appropriate injunction. The question arose whether under Section 53-A of the Transfer of Property act, a person in possession of the property under an unregistered contract of sale could maintain such an action. The Judicial Committee negatived the right of the plaintiff to maintain an action of this kind. While interpretating the language of Section 53-A of the Transfer of Property Act, the Privy Council observed as follows:-
'In their Lordships' opinion, the amendment of the law effected by the enactment of S. 53-A conferred no rights of action on a transferee in possession under an unregistered contract of sale. Their Lordships agree with the view expressed by Mitter J., in the High Court 'the right conferred byS. 53-A is a right available only to the defendant to protect his possession.' ................. The section is to gramed as to impose a statutory bar on the transferor; it confers no active title on the transferee. Indeed, any other reading of it would make a serious inroad on the whole scheme of the Transfer of Property Act.'
12. A question about the interpretation of the Sction 53-A also arose before the Supreme Court in Delhi Motor Co., v. U. A. Basrurkar, AIR 1968 SC 794. The plaintiff in that case was a partnership firm and it entered into a contract with the defendant company for taking a sublease of a building of which the company was a tenant. The said contract of sublease was evidenced by three unregistered documents. The plaintiff was given possession of a portion of the building, but later on, it was dispossessed of it and it brought a suit for possession against the defendant company. A question arose whether the plaintiff could maintain an action for the recovery of possession against the defendant company on the basis of an unregistered document of lease. The argument put forward on behalf of the plaintiff was that though the contract of lease had not been registered the plaintiff could claim possession under it in view of the provisions of Section 53-A of the Transfer of Property Act, because the defendant company would be debarred from enforcing against the plaintiff any right in respect of that property which the plaintiff had already taken possession. In negativing this argument, the Supreme Court considered the scope of Section 53-A of the Transfer of Property Act and observed as follows:-
'In our opinion, this argument proceeds on an incorrect interpretation of Section 53-A because that section is only meant to bring about a bar against enforcement of rights by a lessor in respect of property of which the lessee had already taken possession, but does not give any right to the lessee to claim possession or to claim any orht rights on the basis of an unregistered lease. Section 53-A of the Transfer of Property Act is only available as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor.'
It may be noted that the Supreme Court approved of the interpretation of Section 53-A by the Privy Council in Probodh Kumar Das's case (supra).
13. These two cases which are bidning authority on this Court, clearly lay down the following propositions:-
(1) Section 53-A only creates an estoppel against the transferor or persons claiming under him from enforcing any right in respect of the property against the transferee or persons claiming under him.
(2) The transferee or persons claiming under him have a right to plead the bar of estoppel to protect their possession against the transferor or persons claiming under him.
(3) The transferee does not get any right to claim possession or any other right in the property on the basis of an unregistered document.
(4) The right to plead estoppel conferred by Section 53-A on a transferee is a right available to the transferee in order to defend his possession, and
(5) Section 53-A confers no active title on the transferee.
14. Since such a transferee does not obtain any right in the property, it follows that he cannot maintain any suit on the allegations that there is a right vested in him and that such a right is infringed. A plaintiff in order to maintain of a certain legal right and that there is an actual or apprehended infringement of that right. Unless he does so, he cannot maintain a suit. It is precisely on this ground that both the Privy Council and the Supreme court have emphasised that Section 53-A is available to a transferee by way of defence only, that is, in a case where be is arrayed as a defendant seeking to protect, by pleading estoppel. What he has got and not as a plaintiff seeking to remedy the infringement of a right. We may also note that in Padmalabha v. Appalanarasamma, AIR 1952 Orissa 143, a Division Bench of the Orissa High Court has also taken the same view as taken by us. It is observed in relation to Section 53-A as follows:-
'The section can never be availed of as founding a cause of action; and it cannot, therefore, be urged that what is available to the transferee as a defence in a suit in ejectment by the transferor is available to him as a weapon of attack in an action which takes its rise from an invasion of transferee's rights under the contract.'
15. Even this limited right to protect his possession under Section 53-A of the Transfer of Property Act is not available against a transferee for consideration who has notice of the contract or of the part performance thereof. If any right in property becomes vested in the transferee under Section 53-A, it would be unreasonable to make this vesting of the right defeasible as against a subsequent transferee from the transferor, if he had no notice of the contract or of the part performance thereof.
16. Mr. Patel, the learned advocate for the plaintiff, relied on a decision in Achayya v. Venkata Subba Rao, AIR 1957 Andh pra 854. That case was decided by a Division Bench of Andhra Pradesh High Court and the judgment was delivered by Subba Rao, C. J., (as he then was in that High Court). It has been held in that case as follows:-
'But, if the conditions laid down in the section (Section 53-A) are complied with, it enables the transferee to defend his possession if the transferor seeks to enforce his rights against the property. This statutory right he can avail himself both as a plaintiff and as a defendant provided he is using his right as a shield and not as a sword.'
In that case the transferee under an unregistered document had taken possession of the property. That property was sold in execution of a decree against the transferor and the surplus amount of money was lying in Court and the question arose whether the transferee can maintain a suit to recover that amount. The Court held that the transferee can maintain the suit as a plaintiff, because he had filed the suit in order to defend his possession of the property; in other words, the Court held that in effect of substance, it was a defensive act by the plaintiff. After considering the language of section 53-A of the Transfer of Property Act on page 855, the learned Chief Justice observed as follows:-
'The section does not either expressly or by necessary implication indicate that the rights conferred on the transferee thereunder can only be invoked as a defendant and not as a plaintff.'
These observations show that the learned Chief Justice proceeds on the basis that Section 53-A confers such rights on the transferee, that, on infringement of those rights the transferee can have a cause of action enabling him to file a suit. In our opinion, this reading of Section 53-A is not proper. As we have indicated above, Section 3-A does nt confer any right on the transferee. If a transferee has a right of possession conferred on him by Section 53-A then we would have had no hesitation in holding that the transferee can protect that possession not only as a defendant, but also as a plaintiff basing his cause of action on his right of possession. But in our opinion, no such right is conferred on the transferee. It may also be noted that in this case before the Andhra Pradesh High Court the transferee was not pleading any estoppel against the transferor. The property in his possession was sold away in execution of a decree. By the suit, the transferee was laying a claim of ownership to the amount laying in Court. In our opinion, Section 53-A does not confer any such right on him. With utmost respect to the learned Judges of the Andhra Pradesh High Court, therefore, we are unable to agree with their decision.
17. Mr. Patel also relied upon the decision in Gulab Chand v. Madholal, AIR 1953 Ajmer 47 In Paragraph 5, the learned Judicial Commissioner notes the question that arose before him, namely, whether Section 53-A operates only as an estoppel against the transferor or the persons claiming under the transferor. The learned Judicial Commissioner enumerated the cases for and against the transferee. However, he has not discussed any of these cases. He purports to follow a ruling of the Judicial Commisinoer's Court of Ajmer in Fateh Mohd v. Ghosia Bibi, AIR 1953 Ajmer 19. In that case the learned Judicial Commisioner held that a trasnferee under an unregistered contract of sale, if he is dispossessed by the transferor, can bring a suit to recover his possession and that such a suit by the transferee would be in reality an attempt made to defend his possession. In view of the clear pronouncement of the Supreme Court in Delhi Motor Co.'s case : 2SCR720 (supra), this view of the Judicial Commissioner's Court at Ajmer does not commed itself to us.
18. Mr. Patel also sought to rely upon the decision in Ram Chander v. Maharaj Kunwar : AIR1939All611 . In that case the plaintiff was a lessee of a house under a defective lease, as it was not signed by both the parties as required by Section 107 of the Transfer of Property Act. The subsequent purchaser of the property was attempting to demolish the house and to interfere otherwise with the plaintiff's right as lessee. The plaintiff, thereupon brought a suit for an injunction to restrain the purchaser from doing so and the question arose whether the plaintiff could maintain the suit. The argument on behalf of the plaintiff was that the plaintiff could do so under the provisions of Section 53-A of the Transfer of Property Act. The learned Judges in the Allahabad High Court proceeded on the basis that the plaintiff was not attempting to set up the transfer which was invalid and that he was merely seeking to debar the defendants from interfering with his possession. In the course of its judgment, the Court observed:-
'He is, in other words, seeking to defend the rights to which he is entitled under Section 53-A of the Transfer of Property Act.'
It is clear from the above observations that the learned Judges proceeded upon the view that under Section 53-A rights are conferred on the transferee. Since in our opinion, no right in property is conferred on the transferee under Section 53-A we are unable to agree with this decision.
19. Mr. Patel further relied upon a decision in Ewaz Ali v. Firdous Jehan, AIR 1944 Oudh 212. In that case the plaintiff had an unregistered document of sale in her favour and since she was already in possession of the property, the continued that possession under the contract of sale. The subsequent purchaser from the owner obtained an order of eviction. She filed objections under O. 21, Rules 99 and 100, but her objections were overruled. She then filed a suit under Order 21, Rule 103 for a declaration that she was in possession of the house in suit on her own account and could not be dispossessed in execution of the ejectment decree. We may note that in this case the plaintiff was, for all practical purposes defending her possession against the transferee who was claiming under the transferor. The law debarred the purchaser from enforcing any right against her and all that she wanted to achieve by the Court's help was to see that the estoppel against the purchaser from the transferor created by Section 53-A was enforced against him. She wa snot complaining about any infringement of a right in property vested in her. In our opinion, therefore, this case is distinguishable on its own facts.
20. We are, therefore, of the opinion that under Section 53-A of the Transfer of Property Act, the plaintiff derives no right, title or interest in the property. In the plaint, the plaintiff has claimed to be the full owner of the property. That claim of his must fall on the ground that he does not prove to have aby right in the property on the date when he brought the suit. It is urged that by bringing the suit, he is defending his possession. We fail to see how such an argument can be advanced on the facts of this case. By attaching the property in execution of a money decree, all that the attaching creditor seeks to do is to take the first step to put the property of the judgment-debtor to sale. By taking out an attachment, he prohibits his judgment-debtor from transferring his right, title or interest in the propety. There is no doubt that the ownership of the property still vests in the judgment-debtor and so long as the ownership vests in him, his right, title and interest in the property can be attached and sold. If a purchaser at an auction sale in execution of the decree were to take steps to assert any right to the property on account of his purchase, the transferee can then protect his possession if he can bring his caes under Section 53-A. If the auction purchaser is a person claiming under the transferor then certainly the plaintiff could protect his possession against him, because the auction purchaser would be equally estopped from enforcing any right against him as the judgment-debtor was. By merely attaching his property, the attaching creditor does not do any act which would come in conflict with the possession of the property by the plaintiff. We, therefore, do not accept the argument that by filing this suit, the plaintiff is trying to protect his possession.
21. Mr. Patel, the learned advocate for the plaintiff urged that the plaintiff is entitled to maintain this suit under O. 21, Rule 63, because that provision gives a claimant or objector who is defeated in his claim petition a right to bring a suit to establish the right claimed by him. Mr. Patel's argument is that the plaintiff filed his objection against the attachment by the defendant and since his objection was overruled, he is entitled under O. 21, Rule 63 of the Civil Procedure Code to bring a suit of this nature. In our opinion, the plaintiff was not entitled to file any petition of objection against attachment levied at the instances of the defendant. Since he has no right of any kind in the property he cannot file any proceeding which can be based only upon the existence of a right in property. By filing an application under Order 21, Rule 58 to get the attachment raised, the plaintiff was trying to establish in himself a right of possession which he, in fact, did not possess. Therefore, it was not open to him to file any application under Order 21, Rule 58, because thereby he took up a role of an attacker rather than that of a defender. Under the doctrine of part performance as enacted in Section 53-A, there is no active title in the plaintiff and therefore, he cannot seek to enforce, by initiating an action, a right to which he is not entitled.
22. It was also urged by Mr. Zaveri, learned Advocate for the defendant that the attaching creditor is not a person claiming under the judgment-debtor, that is, the transferor and therefore, the estoppel created by Section 53-A does not come in his way. The judgment-creditor has not derived any interest in the property through the judgment-debtor-transferor. In fact he is hostile to the transferor because it is agains the judgment-debtor's desire that he has attached this property to satisfy the decree obtained against him. In our opinion, the attaching creditor cannot be said to be a person claiming under the transferor and therefore, the plaintiff cannot prevent him from attaching the property of the judgment-debtor even if it were assumed that by so doing he is protecting his possession. The estoppel created by Section 53-A does not arise against anyone else except the transferor or persons claiming under him.
23. In : AIR1952Ori143 (supra) it has been held '........... a suit by the transferee against an attaching creditor or the transferor under O. 21, R. 63, Civil Procedure Code is not one between him and the transferor or anybody claiming under the transferor. Hence the transferee as a plaintiff cannot avail himself of the benefits of the doctrine of part performance of contract for sale as against an invasion on his rights by attaching credirtor of the transferor.' In that case the Orissa High Court has dissented from the decision of a Single Judge of the Madras High Court in G. Audinarayudu v. Mangamma, AIR 1943 Mad 706. Having gone through this Madras decision, we have no hesitation in agreeing with the view of the Orissa High Court. Therefore also the plaintiff is not entitled to any declaration in his favour in this suit.
24. The next point urged by Mr. Zaveri is that the suit must fall as the judgment-debtor is not made a party to the suit. His contention is that the judgment-debtor is a party to the execution application; and since claim proceedings are part of execution proceedings, the judgment-debtor is deemed to be a party to a claim petition and hence he must be joined in a suit under O. 21, R. 63. Under Order 21, Rule 58 any person who has an objection to the attachment of any property in execution of a decree, can make an application complaining of such attachment. Rule 59 provides that the objector must show that he had some interest in, or was possessed of, the property attached. Rule 60, 61 and 62, then refer to the investigation of the claim or objection. Rule 63 lays down as follows:
'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.'
It is apparent that an objector or claimant would go to the Court only in respect the right which he claims in the property. He is interested in seeing that his claim or objection is upheld. If the decision goes against him, as in this cse, the claimant or the objector would file a suit to establish that right in the property on the basis of which he preferred the claim or objection. The primary dispute is between the objector and the attaching creditor. Hence, in order to get the attachment raised, the objector must make the attaching creditor a party to his petition. It may be that in certain cases he may think it proper to establish his claim as against the judgment-debtor also. But it will not be necessary for him to do so in all cases. In those cases where the judgment-debtor has done some act indicating his hostile attitude to him, the objector or the claimant may also like to have his right or claim esablished, not only against the attaching creditor, but also against the judgment-debtor. In all cases therefore, it will be for the claimant or the objector to decide as to against whom he wants to establish his right in the property attached. If he proceeds against the attaching creditor alone, the deision will no doubt put an end to the dispute between him and the attaching creditor. But since the judgment-debtor has not been made a party to the claim petition or to the suit, the judgment-debtor will not be bound by any decision given in his absence. If the claimant or the objector wants the judgment-debtor also to be bound, he must make the judgment-debtor a party to the claim petition or the suit. It is not necessary, therefore, that the judgment-debtor should be made a party to a suit under Order 21, Rule 63, unless the claimant or the objector desires to establish his right to or interest in the property against him also. This point has been dealt with by a Full Bench of the Andhra Pradesh High Court in Chimpiramma v. Subramanyam, AIR 1957 Andh Pra 61 (FB). In that case it is observed:-
'It may be taken as settled law, and also consistent with practice, that a judgment-debtor need not be made a party to claim proceedings in which case, the Court desides only the right of the decree-holder to bring the property to sale against the claim of the claimant's right to have the property released. Such an order would not obviously bar the judgment-debtor who was not a party to the proceedings. It is equally settled that a judgment-debtor can also be made a party to such a proceedings, and in that event it would be binding on him and preclude him from setting up his claim unless he gets the said order set aside in a suit filed under O. 21, R. 63, C.P.C. within the time prescribed ....... Subject to the operation of the doctrine of res judicata, an order on a claim petition filed under O. 21, R. 58 of the Code of Civil Procedure or a decree in a suit filed under R. 63 of that order, does not extend beyond the execution of the decree whih has given rise to those proceedings.'
We are in agreement with these observations.
25. We may also refer to the following observations to be found in Mangru v. Taraknathji, : 3SCR125 :
'The effect of R. 63 is that unless a suit is brought as provided by the rule, the party against whom the order in the claim proceeding 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 proceeding arose, but the bar of Rule 63 extends no further.'
26. Mr. Zaveri relied upon the decision of a Single Judge of Kerala High Court in Mathai v. Kunjukochu, AIR 1963 Ker 236. In that case, the learned Judge, no doubt held that the judgment-debtor is a necessary party to a suit under O. 21, R. 63. The main reason on which the learned Judge has come to this conclusion is that the judgment-debtor is, as much interested in opposing the claim, as the judgment-creditor himself and therefore, there is every reason to hold that the judgment-debtor necessarily be made a party to the claim proceedings. The judgment proceeds upon an assumption that in all cases a judgment-debtor is interested in opposing the claim. In our opinion, this assumption cannot be made, opinion, this assumption cannot be made. Our experience of execution proceedings has shown that in many cases, the judgment-debtors accept the correctness of the claim or objection. We prefer to agree with the decision of the Andhra Pradesh High Court.
27. Mr. Zaveri relied upon the deciusion in Ghasi Ram v. Mangal Chand, (1906) ILR 28 All 41. That decision really goes against Mr. Zaveri. It lays down that the judgment-debtor is not a necessary party to a suit under Order 21. Rule 63. However, Mr. Zaveri relied upon the observations - 'If an unsuccessful claimant brings a suit and he seeks to establish his claim against both the decree-holder and the judgment-debtor, the latter is of course a necessary party.' We are in respectful agreemetn with this observation because we are also of the opinion that the judgment-debtor must be made a party to such a suit if the claimant seeks to obtain an order also against the judgment-debtor. Mr. Zaveri also relied upon the decisions in Ramchandar Singh v. Raghopati Sahai, AIR 1945 Pat 189 and Moolchand v. Parmanand, AIR 1951 Nag 438. We have gone through these two cases and in our opinion they do not support the argument put forward by Mr. Zaveri. They only lay down that a person in whose favour an order is made in a claim proceeding should be made a party to the suit and that the decree-holder is a necessary party in a suit by a defeated claimant.
28. Mr. Zaveri then raised another point. There are two other creditors of Alihussain who have also obtained money-decrees and have filed execution applications in the Court at Sidhpur. They are Regular Darkhasts Nos 76 and 77 of 1955. The Court has ordered them to be kept in rateable distribution with the execution application filed by the present defendant. Mr. Zaveri argued that the decree-holders in those two execution applications are also necessary parties to this suit, because those two other decree0holders are also to be deemed to be attaching creditors. No such contention was raised on behalf of the defendant either when the claim petition was heard or when the suit was tried in the trial Court or when the appeal was heard in the District Court. Apart from that, the contention seems to be devoid of any substance. It is not the case of Mr. Zaveri that these two other decree-holders have taken out any attachment of the property which is in possession of the plaintiff. Under Order 21, Rule 58 a claim or objection an be filed against the property which is under attachment. Therefore, the attachment of the property is a condition precedent to the filing of an application under Order 21, Rule 58. Since these two other creditors have not attached the property in possession of the plaintiff there cannot arise any occasion for the plaintiff to file any claim petition against them or to file any suit against them. No cause of action has accrued to the plaintiff against those two other decree-holders. Mr. Zaveri relied upon the decisions in Gourgopal Dev v. Kamalkalika datta : AIR1934Cal559 ; Balmokand v. Ram saran Das, AIR 1936 Lah 519 and Manora Bai v. Sultan Bakath, AIR 1968 Andh Pra 113, in support of his argument. These cases do not at all deal with the question whether those decree-holders whose Darkhasts are ordered to be kept in rateable distribution with the Darkhast of an attaching decree-holder, but who have not taken out attachment in their own Darkhasts, can be deemed to be attaching creditors on the basis of the attachment taken out by the attaching creditor alone. These decisions, therefore, do not help Mr. Zaveri. No other provision of law or authority was cited to us in support of his argument by Mr. Zaveri.
29. No other contention was raised before us. Since the plainitff has no right to maintain such a suit, it is clear that his suit must fail and should be dismissed.
30. In the result therefore, Second Appeal No. 424 of 1961 filed by the plaintiff is ordered to be dismissed with costs. Second Appeal No. 539 of 1961 is allowed and the decree passed by the learned Assistant Judge in Appeal No. 227 of 1959 is set aside and the suit of the plaintiff is ordered tobe dismissed with costs throughout.
31. Order accordingly.