1. I his appeal arises out of a suit instituted by the appellant, under Order 21, Rule 63, Civil Procedure Code, to establish his right to attach and bring the suit properties to sale in execution of a decree for money which he had obtained in 1917 against one Syed Abdul Razak Sahib (since deceased). When, the suit properties were attached in execution of that decree in November, 1929, the respondent preferred a claim, which was allowed on the ground that he had been in possession of these properties in his own tight since 1911; the executing Court declined to go into the question of title. In this suit which was instituted in consequence of that order, the lower appellate Court has also found that though the properties in dispute belonged at one time to Syed Abdul Razak Saheb, he had agreed to sell them to the respondent, received the consideration and put him in possession in 1911 and that the respondent has ever since continued in possession. On this finding it would have followed that though title under the sale did not pass to the respondent, because of the absence of a registered sale deed, he had acquired a title by adverse possession many years before the date of the attachment.
2. To avoid the above result, the appellant relied on certain proceedings that took place in 1917, between the respondent and another decree-holder, when the latter attached these properties in execution of a decree that he had obtained against Syed Abdul Razak. A claim petition then filed by the present respondent was dismissed on 9th July, 1917; and, it has been contended that as no suit was filed by the respondent within a year of the date of that order to set it aside, he is not entitled to rely on any possession that he might have had prior to 9th July, 1917, in support of his plea of adverse possession. To complete the narrative and to assess the value of the above contention, I may add that though, on the dismissal of the claim petition in 1917, the properties were sold in execution of the third party's decree, that sale was set aside on objections raised by the judgment-debtor and the decree of the third party was otherwise satisfied on 10th August, 1918, so that it became unnecessary to take any further proceedings in execution of that decree.
3. Both the lower Courts dismissed the appellant's suit and their decision was confirmed in second appeal by Horwill, J., who however granted the appellant leave to appeal under Clause 15 of the Letters Patent. In view of the state of the authorities bearing on some of the questions arising in the appeal, the case has been directed to be posted before a Bench of three judges.
4. The earned Counsel for the appellant has, on the facts above stated, raised two contentions (i) that the effect of the attachment of the suit properties by the stranger-decree-holder in 1917 was to interrupt the adverse possession of the respondent and that as that attachment must be deemed to have subsisted till 10th August, 1918, when that decree was satisfied, the respondent could acquire a prescriptive title only by possession for 12 years sub-sequent to 10th August, 1918, (ii) that, in any event, the effect of the order dated 9th July, 1917, dismissing the respondent's claim petition was to estop him from pleading his prior possession and to treat the possession as being in the judgment-debtor and that unless the respondent proved a subsequent entry and continuous possession after that entry for A period of 12 years, he could not claim a prescriptive title. A further difficulty arose in the appellant's way on account of the fact that this suit was instituted only in November, 1931. It will be noticed that even if, in accordance with the above contentions of the appellant, the respondent should be called upon to prove 12 years' possession from 10th August, 1918, that period would have expired by 11th August, 1930, that is, more than a year before the institution of this suit. The appellant had therefore to advance the further contention (No. iii) that in a claim suit, the material date with reference to which the Court has to determine the rights of the parties is the date of the attachment, which in this case was 8th November, 1929.
5. The first contention seems to me clearly untenable and no authority has been cited in support of it. It was held so long ago as in Krishnama Rajah v. Narayanaswami Rajah (1869) 4 M.H.C.R. 281 and Narayanrav Damodar Dabholkar v. Balkrishna Mahadev Gadre I.L.R.(1880) 4 Bom. 529 , that an attachment in execution of a decree does not dispossess the party in possession; and in Seetharami Reddi v. Venku Reddi (1901) 11 M.L.J. 344 and Ranganatha Aiyar v. Srinivasa Aiyangar (1925) 49 M.I.J. 656, this Court has expressly laid down that an attachment does not interrupt the adverse possession of a stranger holding adversely to the judgment-debtor. As explained in Ranganatha Aiyar v. Srinivasa Aiyangar (1925) 49 M.I.J. 656, this proposition has not been dissented from in Pandiyan Pillai v. Vellayappa Rowther : AIR1918Mad572 . Nor can it be maintained that Harishankar Jebhai v. Naran Karsan I.L.R.(1893) 18 Bom. 260, Vasudeo Atmaram Joshi v. Eknath Balkrishna Thite I.L.R. (1910) 35 Bom. 79, Najimunnessa Bibi v. Nacharuddin Sardar I.L.R. (1923) Cal. 548 and Venkata Rangacharyulu Ayyavarlam Garu v. Jammi Turanga Rao : AIR1938Mad857 , which were relied on by appellant's earned Counsel in support of his third contention, lay down any proposition corresponding to his first contention. It seems to me that in view of the provisions of the Civil Procedure Code relating to the effect of an attachment and of the form (No. 24) in Appendix E to the Code, it is not possible to hold that the possession of a stranger is affected or disturbed by an attachment. The earned Counsel relied on the familiar use of the expression 'custodia legis' when speaking of the effect of an attachment; it does not seem to me right to rely on this expression as justifying the view that the property attached, even if in the possession of a stranger, passes into the possession of the Court. At best, the expression can only signify some kind of control of the Court, over further dealings with the property by the judgment-debtor.
6. Reliance was placed on certain observations in Haranchandra Chakravarti v. Joy Chand I.L.R.(1929) 57 Cal. 122, Sivaswami Odayar v. Subramania Aiyar (1931) 62 M.L.J. 68 : I.L.R. 55 Mad. 316 and Mahasukh Jhaverdas v. Valibhai Fatubhai : AIR1928Bom177 , where the Court had to determine the scope of Section (sic) of the Provincial Insolvency Act. I see no reason to quarrel with the view there taken that that section is not confined to 'movable property'. The observation in Mahasukh Jhaverdas v. Valibhai Fatubhai : AIR1928Bom177 , is no doubt couched in terms which suit the appellant's contention; but in Sivaswami Odayar v. Subramania Aiyar (1931) 62 M.L.J. 68 : I.L.R. 55 Mad. 316, Waller, J., emphasised the unreasonableness of treating an attachment as putting the immovable property attached in the possession of the Court. The question of adverse possession did not arise in any of these cases and I am not prepared to take observations contained in them out of their context and base on them a proposition which the learned Judges had no occasion to think of. In support of the argument that an attachment should not be treated as having no greater effect than preventing alienation by the judgment-debtor, reliance was placed in certain observations in Suraj Bunsi Koer v. Sheo Proshad Singh , Sankaralinga Muddliar v. Official Receiver of Tinnevelly : AIR1926Mad72 and Anantapadmanabhaswami v. Official Receiver of Secunderabad (1933) 64 M.L.J. 562 : L.R. 60 IndAp 167 : I.L.R. 56 Mad. 405 . These at best only show that so far as the attaching creditor is concerned he may by reason of the attachment be able to defeat survivorship, to the extent necessary to satisfy his claim. Even the reservation made in Anantapadmanabhaswami v. Official Receiver of Secunderabad (1933) 64 M.L.J. 562 : L.R. 60 IndAp 167 : I.L.R. 56 Mad. 405 , only suggests the possibility of a charge or lien in favour of the attaching creditor and lends no support to the theory of dispossession of a stranger or interruption of his adverse possession.
7. The analogy of cases decided with reference to the effect of an attachment under Section 146 of the Criminal Procedure Code, Sarat Chandra v. Bibhabati Debi (1921) 34 Cal. L.J. 302 and Ramaswami Aiyar v. Muthuswami Aiyar : (1906)16MLJ541 , only helps to emphasise the distinction between an attachment under that section and an attachment in execution of a Civil Court's decree.. This distinction has: been clearly pointed out in Gopala Aiyar v. Krishnaswami Aiyar (1919) 54 I.C. 473. A Magistrate acting under Section 146 of the Criminal Procedure Code takes the property out of the possession of the disputants and the subsequent possession of the Receiver is in law treated as possession on behalf of the true owner and not of the party previously in possession without title. But an attachment in execution does, not prevent the judgment-debtor and much less a third party from continuing to enjoy the property; there is accordingly no occasion for the application of the rules relating to 'constructive possession'. The same consideration furnishes the ground of distinction between cases relating to viz major and the present. In the former case, the land has ex hypothesi become incapable of actual possession; and the doctrine of constructive possession can be invoked only by the true owner and not by a person who has to rely on adverse possession. Secretary of State for India v. Krishnamoni Gupta .
8. I may here refer to the indication afforded by Article 137 of the Limitation Act. Read with Section 3 of the Act, it implies that a person who purchases in Court, auction property which at the time of the sale was not in the possession of a judgment-debtor must sue for possession within 12 years from the date when the judgment-debtor was first entitled to possession. If the appellant's argument were well founded, the position; ought to be different in ceses in which there has been an attachment prior to the Court sale. If the Court were to be regarded as being in possession of the property, no suit by the purchaser would be necessary at all. It would be sufficient if he applied to the Court to hand over possession to him. Further, the period of the stranger's possession would have to be reckoned in that view only up to the date of the attachment and not up to the date of the commencement of the suit. This inconsistency might perhaps be obviated by assuming that Article 137 was intended to apply only to cases in which the Court sale has taken place without an antecedent attachment, as, for instance, in execution of a mortgage decree. But I see no warrant for so limiting Article 137 and I am not aware of any case in which it has been so limited.
9. In support of the second contention above set out, the earned Counsel for the appellant relied on Velayuthan v. Lakshmana I.L.R.(1885) 8 Mad. 506 and Aisamma v. Moideen Kunhi Behari : (1923)45MLJ690 . In the first of these cases, which was followed in the second, it was observed that when a claim petition is dismissed and no suit questioning that order is instituted within a year, the dismissal 'amounts to a summary declaration of want of title in the objector and such declaration becomes equivalent to a final adjudication against his right'. Where the claimant had set up that he had been in possession, the learned judges construed the order of dismissal to amount to 'an adjudication that the land was not in the applicant's possession' and in their opinion it followed that in a suit by the Court auction-purchaser it would not be open to the claimant to assert, in direct opposition to that declaration, that he had been in possession. I may at the outset observe that this line of cases is of no avail to the appellant in the present case, for two reasons. The conclusiveness of the order dismissing a claim petition can be availed of only by persons purchasing in a sale held in pursuance-of the attachment in connection with which the claim was preferred. Even if it could be assumed that the adjudication would be final as between the particular decree-holder and the claimant or at least in proceedings subsequently taken to enforce that particular decree, the position in the present case is different. As already pointed out, the claim order of 9th July, 1917, was passed not in connection with the appellant's decree or in any proceedings to which he was a party; and even as regards the third party's decree then under execution, the decree was otherwise satisfied, making it unnecessary for the claimant to take any steps to vindicate his rights. The fact that that decree was satisfied only after the expiry of a year from the date of the claim order cannot, in my opinion, make any difference for the purpose of the present case. If the claimant allowed one year's term to expire, he would no doubt be running a risk, in that the decree-holder who had originally attached the property might proceed to bring the property to sale in pursuance of his attachment. If however that decree is not for any reason executed subsequently, there is no justification for imposing a penalty on the claimant for not filing a suit within a year of the dismissal of his claim. I may add that the weight of authority is in favour of the view that the finality of the claim order cannot be invoked even by the particular decree-holder who was a party to the claim order and in respect of the very decree which was then under execution, unless he was proceeding to bring the properties to sale in pursuance of that very attachment. See Najimunnessa Bibi v. Nacharuddin Sardar I.L.R.(1923) 51 Cal. 548 It also seems to me difficult to support the observations in Velayuthan v. Lakshmana I.L.R. (1885) 8 Mad. 506 in their entirety. For one thing, it does not seem to me right to interpret every order dismissing a claim petition as involving an adjudication that the claimant was not in possession. The present case itself affords an illustration: because, the order of 9th July, 1917, was not based on any finding that the claimant was not in possession but only proceeded on the ground that the claim petition had been unreasonably delayed and was filed on the very day on which the sale was to take place. There is no doubt a reference to the absence of a sale-deed in the claimant's favour. That statement seems to have been added only to justify the course adopted by the Court, namely, refusal to investigate the claim. Even otherwise, the reference to the absence of a sale-deed cannot be construed as implying a finding against the claimant's possession. Mr. Krishnaswami Aiyar contended that an order dismissing a claim petition must be presumed to have been passed only under Order 21, Rule 60 of the Civil Procedure Code, that is, on the footing that the property was in the possession of the judgment-debtor or in the possession of some other person in trust for him or as his tenant. I am not able to concur in this argument; because, it ignores the proviso to Rule 58, Clause (1) empowering the Court to dismiss the application without investigation. Even in cases in which the Court may investigate the claim, the dismissal of the claim need not necessarily be on the ground that the judgment-debtor is in possession. If the Court found that the claimant was not in possession, it must equally dismiss the petition. In such a case it might as well be that a third party and not the judgment-debtor was in possession. The principle of constructive adjudication must be applied with great caution to these summary orders in execution and I see no justification for reading into a claim order anything more than is contained in it or is at least necessarily implied in it.
10. Even in cases in which a claim petition is dismissed on a finding that the claimant was not in possession, I find it difficult to go the length of holding that in the absence of a suit by him within one year of the order, he must be finally debarred from relying upon proof of prior possession when the ultimate purchaser sues for possession. The observations in Velayuthan v. Lakshmana I.L.R.(1885) 8 Mad. 506 do not take sufficient notice of the difference between a proceeding under Rule 60 or 61 of Order 21, Civil Procedure Code and a suit under Rule 63, as regards the scope of the enquiry contemplated. To take a case in which a claim is dismissed on a finding of absence of possession in the claimant, this finding is ex hypothesi capable of being displaced by a suit within one year. To that extent it is not final. But if the claimant had by that time no completed title but only a possession which was on the way to mature into a prescriptive title, what has he to gain by the institution of a suit under Order 21, Rule 63? Suppose in such a suit he satisfies the Court that the proper order as to the absence of possession in himself was wrong; if nevertheless lie had not by that time perfected his prescriptive title, his suit is bound to fail. The decree-holder would be still entitled to treat the property as the property of the judgment-debtor and bring it to sale. What then is the purpose in insisting upon the claimant instituting a suit which is bound to be dismissed? These considerations incline me to think that the omission to file a suit questioning the finding as to possession will only justify that finding being treated as prima facie evidence of the absence of possession in the subsequent suit of the purchaser for possession. It is difficult to justify the view that the omission to file a purposeless suit should deprive the claimant of the benefit of his prior possession even if he is able to prove it conclusively.
11. In Venkata Rangacharyulu Ayyavarlam Garu v. Jammi Turanga Rao : AIR1938Mad857 , the learned Judges interpreted the order dismissing the claim petition as involving an adjudication that the possession if any held by the claimant was on behalf of the judgment-debtor. If the terms of the order in that particular case justified that interpretation, it would be a different matter. But if it was meant to imply that every order dismissing a claim petition involved an adjudication that the judgment-debtor was in possession on that date, I am with all respect unable to concur in that view. Where, as in the present case, the claim petition is dismissed on the ground of delay, it is impossible to justify any such interpretation.
12. In the view that the appellant fails in respect of contentions 1 and 2 set out above, the third contention does not call for a decision in this case,-because, even if the fights of parties are to be adjudicated as they stood on 8th November, 1929, the respondent would have acquired a prescriptive title by that time, having been in continuous adverse possession from 1911. But as the cases bearing on this contention have been referred to before us, I think it right to make a few observations on the point. It may in a sense be right to state that the principal question for determination in a. suit under Order 21, Rule 63, Civil Procedure Code, is whether or not the order on the claim petition was right and in that sense the Court is in such a suit called upon to deal with the rights of parties as they stood on the date of the attachment. But the suit under Order 21, Rule 63 is in form and in substance a declaratory suit and it seems to me that it will be an unreasonable exercise of discretion by the Court to make a declaration, in such a case, of the decree-holder's right to attach if the period of limitation of 12 years had expired between the date of the attachment and the date of the institution of the suit unless the property had, already been sold in time. The suit is often but a step to enable the decree-holder to bring the property to sale; if by reason of the extinction of the judgment-debtor's title before the sale, there would be nothing to be sold, a declaration in the decree-holder's favour in the suit under Order 21, Rule 63 will not only be futile but sometime even be mischievous, as it may mislead an unwary purchaser into thinking that he was buying a subsisting interest. In this view, I am inclined to agree with Seetharami Reddi v. Venku Reddi (1901) 11 M.L.J. 344 and Ranganatha Aiyar v. Srinivasa Aiyangar : AIR1926Mad42 in preference to Vasudeo Atmaram Joshi v. Eknath Balkrishna Thite (1910) I.L.R. 35 Bom. 79 and Pandiyan Pillai v. Veilayappa Rowther : AIR1918Mad572 . The appeal fails and is dismissed with costs.
Lakshmana Rao, J.
13. I agree.
14. I agree.