1. The 5th defendant obtained a money decree against the 1st and 4th defendants in a suit in which the 2nd and 3rd defendants were parties but were exonerated from liability. The decree-holder attached the undivided half share of the judgment-debtors in certain property alleged to belong to the undivided family of which the four defendants were members, and thereupon the 2nd defendant applied by a petition under Order 21 Rule 58 of the Code of Civil Procedure, that the attachment of portion of the property might be raised on the ground that it had been assigned to him upon a partition and was his separate property. The petition was dismissed on the ground that it was too late. The appellant bought the attached property at the Court sale and then sued the defendants for partition, and an issue was raised whether the portion of the property previously claimed by the 2nd defendant belonged to him.
2. The appellant was not a party to the previous suit and is not a representative of any party, Nadamuni Narayana Iyengar v. Veerabhadra Pillai I.L.R. (1910) Mad. 417 and the provisions of Section 47 of the Code of Civil Procedure do not apply to his suit. The question therefore is whether under Order 21 Rule 63, the order made upon the 2nd defendant's petition in the proceedings in execution precludes him from raising this defence.
3. The argument on behalf of the 2nd defendant appears to be that Rules 58 to 63 of that Order do not apply to parties to suits who are governed by Section 47, and that applications under that section are in some manner independent of the rules.
4. Section 47(1) contains two provisions, of which the first is positive and prescribes the Court which shall determine certain questions and therefore relates to jurisdiction and the second is negative and declares that the application to the Court shall not be initiated by a plaint, If a plaint raising any of these questions be presented to the Court executing the decree it may be treated as a proceeding in execution, but if it be presented to another Court it should be rejected. In the former case the Court may treat a statement of defence as an application for relief under the section, Thathu Naich v. Kondu Reddi I.L.R. (1909) Mad. 242 .
5. Since the section does not prescribe the procedure to be followed, regard must be had to the provisions of Order 21 which deals with 'execution of decrees and orders;' and Rules 58 to 63 of that Order which are grouped under the subheading 'Investigation of claims and objections, ' regulate applications made on the ground that any property attached in execution is not liable to such attachment. Section 60 of the Code declares what things are liable to and what exempt from attachment, and a party to a suit may raise a claim or objection in the executing court under that section and in the absence of any specific provisions those headed' Investigation of claims and objections' will apply. It has been decided by the Calcutta High Court Punchanan Bundopadhya v. Rabia Bibi I.L.R. (1890) Cal. 711 upon the words of Section 278 of the Code of Civil Procedure, 1882, 'and in all other respects, as if he was a party to the suit,' that that and the following sections which correspond to Rules 58 to 63 do not apply to parties to suits.
6. No doubt if the claimant be a party those words do not apply but they do not expressly exclude him from the operation of the rule or limit the very general words with which the rule begins 'where any claim is preferred to, or any objection is made'; moreover, these words occur in a sentence defining the power of a Court which has already been given jurisdiction over any claim or objection by the preceding words 'the court shall proceed to investigate', we are of opinion that the concluding words of the first paragraph of Rule 58(1) may be taken as applying only to the case where the claimant or objector is not a party. We may also point out that the general arrangement of the present Code differs from the Code of 1882, in that the body of the Code deals with matters of substantive law and jurisdiction and the rules of procedure are relegated to the first schedule, and we must therefore consult the latter to discover the manner in which the principles laid down in Section 47 is to be carried out.
7. The question as to the remedy of a party to a suit who is aggrieved by an order made upon a claim or objection does not arise in the present case, but we may point out that Section 96 of the Code, which gives a right of appeal from a decree, commences with the words 'Save where otherwise expressly provided in the body of this Code' and that Section 121 enacts that, ' The rules in the first Schedule shall have effect as if enacted in the body of this Code' and that Rule 63 may possibly be construed as substituting a right of suit for right of appeal.
8. Their Lordships of the Privy Council have described a suit under Section 283 of the Code of 1882, which corresponds to Rule 63 as simply a form of appeal Phul Kumari v. Ghanshyam Misra I.L.R. (1907) Cal. 202.
9. The policy of the legislature is to secure the speedy settlement of questions of title raised at execution sales Sardhari Lal v. Ambika Pershad I.L.R. (1888) Cal. 521. (P.C.) and the principle applies whether the claimant be a party or a stranger to the suit. We are of opinion that the meaning of Rule 63 is that the parties to the proceedings shall be concluded by the order made thereon, and that the purchaser at a Court sale shall take the property purchased by him free from any claims negatived by that order, subject to any right of appeal or of suit to which the claimant may be entitled. In the present case the second defendant did not appeal or bring a suit and is therefore precluded from asserting his title under a partition.
10. The decree of the lower Appellate Court is set aside and that of the District Munsif is restored with plaintiff's costs in this and the lower Courts.