Alfred Henry Lionel Leach, C.J.
1. The decision in this appeal turns on the answer to be given to a question of law, but in order to understand the question it is necessary to set out the facts, which are of a complicated nature.
2. On the 2nd July, 1925, one Krishna Aiyar sold to his brother Venkatachalapathi Aiyar a house in Dindigul town. Some eight months later Venkatachalapathi Aiyar executed a deed purporting to release his ownership of the property in favour of his brother Krishna Aiyar. The reason for this transaction is apparent. Venkatachalapathi Aiyar was in financial difficulties and he wanted to prevent the property falling into the hands of his creditors. In the course of the year he was adjudicated an insolvent and it is not a matter for surprise that the Official Receiver thought fit to take steps to obtain an order of the Court setting aside the deed under which Venkatachalapathi Aiyar purported to revest the title in his brother. On the 10th July, 1930, the Insolvency Court held that this was a sham transaction and cancelled the deed. This meant that the title to the property vested in the Official Receiver, as representing the estate of Venkatachalapathi Aiyar. On the 30th October, 1930, the Official Receiver sold the property to one Sulaiman, who on the 8th November, 1930, sold it to the respondent in this appeal. On the 29th March, 1931, the Official Receiver delivered possession to the respondent.
3. On the 20th July, 1925, Krishna Aiyar mortgaged to the appellant other immovable property. The mortgage debt was not re-paid and the appellant was compelled to file O.S. No. 77 of 1929, in the Court of the District Munsiff, Dindigul, to enforce his mortgage. As the property mortgaged was not of sufficient value to meet the appellant's claim, he applied for, and obtained, an order for attachment before judgment of the house conveyed by Krishna Aiyar to Venkatachalapathi Aiyar and now in suit. On the 11th February, 1930, the appellant was granted a mortgage decree and the property covered by it was sold in execution. As it did not realize sufficient to discharge the decretal amount, the appellant filed an application asking for the sale of the house which he had attached before judgment. The respondent then filed a petition claiming that the property was his, but this petition was dismissed on the 20th August, 1931. Thereupon the appellant proceeded with his application in execution and the house was in due course sold by the Court, the appellant being the purchaser. When he was given possession, the respondent filed an application under Rule 100 of Order 21 of the Code of Civil Procedure asking the Court to restore possession to him. This application was dismissed on the 20th August, 1935, and consequently on the 12th July, 1936, the respondent filed in the Court of the District Munsiff of Dindigul the suit which has given rise to this appeal.
4. It is now necessary to return to the events of 1931. On the 23rd July of that year Krishna Aiyar's sons, who are respondents 3 to 6 in this appeal, brought a suit against their father for partition of the family estate. They challenged the validity of a number of alienations made by him, and the number included the sale to his brother Venkatachalapathi Aiyar of the house and the mortgage of other property created in favour of the appellant on the 20th July, 1925. The appellant and the respondent were both made parties and their interests clashed. The respondent claimed title to the house in Dindigul through Venkatachalapathi Aiyar and the appellant claimed title to it through Krishna Aiyar. The Subordinate Judge of Dindigul, in whose Court the partition suit was instituted, held that the sale of the house in Dindigul by Krishna Aiyar to Venkatachalapathi was valid and he also held that the mortgage of the other property in the appellant's favour was valid. The judgment in the partition suit was given on the 8th September, 1933, and as it was held that the sale to Venkatachalapathi Aiyar was lawful, the appellant had 110 right to attach the property in execution of his decree against Krishna Aiyar.
5. In the present suit the District Munsiff held that the decision in O.S. No. 49 of 1931 did not call into operation the doctrine of res judicata and consequently the order on the claim petition was conclusive. The respondent appealed to the Subordinate Judge, who reversed the decree of the District Munsiff. The Subordinate Judge was of opinion that the doctrine of res judicata did operate and that the decree in O.S. No. 49 of 1931 being of a later date than the order of the 20th August, 1931, dismissing the respondent's claim, the decree in O.S. No. 49 of 1931 should prevail. The respondent appealed to this Court and Patanjali Sastri, J., who heard the appeal agreed with the Subordinate Judge. This appeal is from the judgment of Patanjali Sastri, J.
6. If O.S. No. 49 of 1931 stood alone, there could be no doubt that the decision would operate as res judicata on the question of title. The question of title was directly in issue between the appellant and the respondent, the appellant claiming through Krishna Aiyar and the respondent through his brother, Venkatachalapathi Aiyar. The decision of the appeal depends, however, on whether Patanjali Sastri, J., was right in applying here the principle that where there are conflicting judgments inter paries the later adjudication should be taken as superseding the earlier, a principle which was applied by this Court in Moturi Seshayya v. Sri Rajafi Venkatadri Appa Roa : (1916)31MLJ219 and Appia Rukmani Ammal v. Kuttuvarva Nurasimha Aiyar : AIR1921Mad612 . The learned Judge relied on the judgments in those cases, but the facts were very different and there was there no question of the application of Order 21, Rule 63.
7. Order 21, Rule 63 states that 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 his suit, should he file one, the order is conclusive. This is a statutory provision and consequently the Court must apply it. In Krishna Rau v. Lakshmana Shanbhogue I.L.R. (1881) Mad. 302, Turner, C.J. and Kindersley, J., had to consider the corresponding provision in the Code of 1859. A person holding a decree for money against a member of an undivided Hindu family attached the judgment-debtor's interest in certain lands alleged to be the joint property of his family. The appellant objected to the attachment on the ground that the property was not family property or partible. His objection was overruled, but he did not bring a suit within one year from the date of the order. The decree-holder, who purchased the judgment-debtor's right in the lands attached and sold, brought a suit within one year from the date of the order to obtain what he had bought at the Court sale. It was held that the appellant was estopped from again pleading that the same property was not family property or partible. The appellant sought to treat the decree-holder's suit as having the same effect as if he himself had brought the suit within one year from the date of the dismissal of his claim petition. It was urged on his behalf that at the time the suit was brought, it was still open to him to bring a suit to establish his right and that he might avail himself of any right which he could enforce by action. It was held that he could not. The learned Judges observe that the order was and was intended to be a summary declaration of a want of title in the objector, which declaration would amount to a final decision of the question between the parties, if the party aggrieved did not take the course indicated by the institution of a suit to supersede it.
8. This decision was followed in Peela Tarakayya v. Venkata Krishnamraju (1917) 6 L.W. 281, which concerned the present Code. The defendant failed to file a regular suit to set aside an order disallowing his claim to property which had been attached within one year from the date of the dismissal order, but the defendant subsequently trespassed upon the property and dispossessed the plaintiff, who thereupon brought a suit within one year of the order for recovery of possession. The defendant pleaded that the property was his own, but this plea was rejected on the ground that the order on the claim petition and the question of title had become conclusive because no independent suit was brought by the unsuccessful claimant within one year, as contemplated by Rule 63. There is another Bench decision of this Court to the same effect. See Kumaran Uni Achan v. Kunhikrishnan Nair (1923) 19 L.W. 394.
9. In view of the mandatory provision of Rule 63 there is no room for the application of the principle on which Patanjali Sastri, J. based his decision. E. 63 says that the order passed on the claim petition shall be conclusive unless the petitioner files a suit within one year to establish the right which he claims. The fact that the decree-holder may file another suit within twelve months to establish a right which he claims does not relieve the objector from the necessity of complying with Rule 63. The wording of the section itself is clear on this question, but we have in addition the three decisions of this Court to which reference has just been made. The respondent was not entitled to rely on the partition suit filed by Krishna Aiyar's sons and therefore he was not entitled to a decree in the suit which he filed when the adverse order was passed against him on the application under Rule 100.
10. The appeal will be allowed with costs throughout.