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Narendra Manubhai Ghael and anr. Vs. Bhikhabhai Bhukhandas Modi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 710 of 1961
Judge
Reported inAIR1963Guj276
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 8 - Order 21, Rule 63; Specific Relief Act, 1877 - Sections 42
AppellantNarendra Manubhai Ghael and anr.
RespondentBhikhabhai Bhukhandas Modi and ors.
Appellant Advocate A.D. Desai, Adv.
Respondent Advocate S.B. Vakil and; P.D. Desai, Advs.
DispositionRevision dismissed
Cases ReferredNagendra Lal Chowdhury v. Fani Bhusan Das
Excerpt:
.....sought to declare that plaintiff entitled to attach certain immovable property in execution of decree - such suit fall under section 42 - expression 'right as to any property' construed in wide sense includes right to attach property. (ii) remedy - in case decree holder had right to file suit under substantive law it is not open to high court to say that it will not allow him to file a suit because he has got better remedy - decree-holder is best judge to decide as what remedy is best suited to him. - - the suit was not filed in a representative capacity on behalf of all the creditors, hence the claim for such a declaration in the plaint is clearly not maintainable. ' if a decree-holder has a right to file a suit under the substantive law it is not open to a high court to say..........claim in the plaint namely lor a declaration that the plaintiffs were entitled to attach the suit property in the course of the execution of the decree in special civil suit no. 31 of 1960.4. declaratory reliefs are statutory reliefs, and unless a declaration falls under the provisions of section 42 of the specific relief act, it cannot be given. section 42 of that act reads as follows:'any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any furlher relief: provided that no court shall make any such declaration.....
Judgment:
ORDER

V.B. Raju, J.

1. This is a revision application by the original defendants Nos. 2 and 3. Opponents Nos 1 to 3 were the original plaintiffs and opponent No. 4 was original defendant No. 1. The plaintiffs gbtained a decree in Special Civil Suit No. 31 of 1960 for Rs, 20,000/- which was passed against opponent No. 4 who is the father of the applicants and one G. K. Ghael. In the plaint filed by ihe plaintiffs, it was alleged that certain partition between the sons of opponent No. 4 was a transfer and fraud on the creditors and should be declared as such. A declaration was also prayed that the plaintiffs have right to attach the property in question. The plaint also prayed for an injunction to restrain the petitioners and opponent No. 4 from obstructing the plaintiffs from recovering their dues by attachment of the property.

2. Various contentions were raised in the written statement including one relating to the maintainability of the suit. By its judgment dated 39-8-61, the trial Court held that the suit was properly filed and was maintainable. It also held that the suit was not barred by the provisions of Section 47 of the Code of Civil Procedure. It is that order which is challenged in this revision, and the applicants' contentions urged in revision are (1) that the suit being one for declaration is not maintainable, and (2) that the order regarding the Court-fee is not correct.

3. Regarding ihe maintainability of the suit, it is to be noted that the plaint prayed for two declarations, one, that a certain partition was a transfer and fraud on the creditors. The suit was not filed in a representative capacity on behalf of all the creditors, hence the claim for such a declaration in the plaint is clearly not maintainable. But there was another claim in the plaint namely lor a declaration that the plaintiffs were entitled to attach the suit property in the course of the execution of the decree in Special Civil Suit No. 31 of 1960.

4. Declaratory reliefs are statutory reliefs, and unless a declaration falls under the provisions of Section 42 of the Specific Relief Act, it cannot be given. Section 42 of that Act reads as follows:

'Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any furlher relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.'

In the instant case, we are concerned with the construction to be placed on the words 'any right as to any property' found in Section 42 of the Specific Relief Act. These words had been the subject-matter of the construction placed by Sir John Beaumont in Jamnabai v. Dattatraya, ILR 60 Bom 226: (AIR 1936 Bom 160). The learned Chief Justice made a distinciion between the expression 'any right to property' and the expression 'any right as to any property.' The learned Chief Justice observed that 'if the words in the section were 'any right to any property', the plaintiff cannot file a suit for declaration, as his claim is merely that of an execution-creditor and at present he has no right to the properly.' The learned Chief Justice observed as follows :

'The question, however, is whether he has any right as to the property. The right which the plaintiff claims is a right to altach the property, and it seems to me that a right to attach particular property is a right as to that property.'

The learned Chief Justice did not agree with the reasoning contained in K. R. M. A. Firm v. Maung Po Thein, ILR 4 Rang. 22: (AIR 1926 Rang. 124) and Mulkh Raj v. Ralla Ramrao Mal, ILR 7 Lah 235: (AIR 1926 Lah 348). At the end of his judgment, the learned Chief Justice observed as follows:

'It seems to me that what the plaintiff in substance is claiming is a declaration of his right as to this property. I think the proper form of declaration to make is this: The Court being of opinion that the purchase of the suit property in the name of defendant No. 2 was benami for defendant No. 1, it is declared that the plaintiff in execution of his decree against defendant No. 1 is entitled to attach the property. That seems to me to be a declaration which falls within Section 42 of the Specific Relief Act.'

5. As Salmond points out in his Book on Jurisprudence, 'Of rights there arc four distinct kinds: (1) rights (in the strict sense), (2) liberties, (3) powers, and (4) immunities'. The word 'right' is used in a wider sense in Section 42 of the Specific Relief Act. The distinction between the expression 'right as to any property' and the expression 'right to any property' is not very important.

6. Section 51, C. P. Code, provides that amongst other things a decree can be executed by attachment and sale or by sale without attachment of any property. Order 21, Rule 54 refers to the procedure of attachment of immoveable property. Order 21. Rule 58, C. P. Code deals with investigation of claims and objections to attachment of property. Order 21, Rule 60, C. P. Code refers to release of property from attachment under certain conditions. Order 21, Rule 61, C. P. Code refers to the circumstances in which a claim made or objection taken to the attachment of property may be disallowed. Order 21, Rule 63, C. P. Code, provides as follows:

'Where a claim or an objection is preferred, Ihe 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.'

This shows that where a claim or an objection is preferred and an order is passed against a decree-holder, the decree-holder may institute a suit to establish the right, which he (decree-holder) claims to the property in dispute. The Civil Procedure Code therefore contemplates that a decree-holder who seeks an attachment to the property of a judgment-debtor, can be said to have a right to the property in dispute. The expression used is 'right which he claims to the property'. The expression used is not 'right which he claims as to the property'. It is, therefore, recognised by the Civil Procedure Code that the right to attach property is a right to the property sought to be attached. That would be so in view of the wide sense in which the word 'right' can be construed as already pointed out above. If a right to attach immoveable- property is a right to the property sought to be attached, then a declaratory decree can be given under Section 42 of the Specific Relief Act.

7. In ILR 4 Rang. 22 : AIR 1926 Rang. 124, it was held that the ordinary procedure would be for a decree-holder to apply for attachment of the property and if an objection to the claim to the attachment is roade successfully, to institute a suit under Order 21. Rule 63, C. P. Code. The learned Judges of the Rangoon High Court also held that a right to attach an immoveable property under a decree for money is not a right as to property b';t as to immoveable property. The learned Judges of the Rangoon High Court referred to a decision in Nagendra Lal Chowdhury v. Fani Bhusan Das, ILR 45 Cal 785: (AIR 1919 Cal 835), arid observed that in cases where there is no attachment, the decree-holder ought not to be allowed to sue for a declaration under Section 42 of the Specific Relief Act. The learned Judges of the Rangoon High Court did not follow the High Court of Calcutta.

8. In the instant case, a declaration was sought to declare that the plaintiffs are entitled to attach certain immoveable property in execution of a decree such a suit would, therefore, fall under the provisions of Section 42 of the Specific Relief Act. I, therefore, agree with the conclusion of the learned Chief Justice Sir Beaumont in ILR 60 Bom 226: (AIR 1936 Bom 160).

9. For the reasons already given, the word 'right' in the expression 'right as to any property' would be construed in a wide sense and not in a narrow sense and if so construed the right to attach property would be a right to that property.

10. The learned counsel for the applicants relied on the following observations in ILR 60 Bom 226, at p. 231: (AIR 1936 Bom 160 at p. 162):

'I entirely agree that the Court ought not to encourage the filing of suits where the relief claimed can be sought expeditiously and cheaply in attachment; and if I thought that the plaintiff in this case could have obtained the relief, which he seeks, in attachment, I should not be prepared to make any declaration in his favour. But it is apparent from the judgment of the trial Court that the question whether the purchase in the name of defendant No. 2 was benami for defendant No. 1 was a somewhat complicated one, and I doubt very much whether a Court would deal with the question in execution. I think it would probably refer the parlies to a suit; and I see no reason for doubting that it was because the plaintiff took that view that he withdrew his attachment in the first instance. If in the exercise of my discretion I refuse to make a declaratory order here, it would be open to the plaintiff to attach the property again; defendant No. 2 would again raise her objection; the execution Court would probably refuse to deal with the matter, and the parties would then have to bring another suit of exactly the same nature as the present suit. I do not think that any useful purpose will be served by putting the parties to so much expense and delay.'

If a decree-holder has a right to file a suit under the substantive law it is not open to a High Court to say that it will not allow him to file a suit, because he has got a better remedy. It is the decree-holder who is the best judge to decide as to what remedy is best suited to him and convenient to him. Therefore, the above observations in ILR 60 Bom 226: (AIR 1936 Bom 160) have no bearing on the controversy in this matter.

11. In view of my finding that a suit for a declaration that a certain partition was a transfer and fraud is not maintainable, the question about the Court-fee does not survive.

12. The civil revision application is. therefore, dismissed. The applicants to pay half the costs to opponents Nos. 1 to 3.


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