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P.S.S. Somasundaram Chettiar and anr. Vs. C.T. Senthilnathan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberO.S. Appeal No. 15 of 1964
Judge
Reported inAIR1967Mad253
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 58 and 63
AppellantP.S.S. Somasundaram Chettiar and anr.
RespondentC.T. Senthilnathan and ors.
Cases ReferredSouth Asia Industries (P) Ltd. v. Sarup Singh
Excerpt:
.....appeal maintainable--held as order xxi, rule 63 provided for suit, appeal not maintainable.;a decree-holder filed an appeal under clause 15 of the letters patent before a bench against the order of a single judge allowing a petition filed under order xxi, rule 58 of the civil procedure code (act v of 1908), by a claimant for raising the attachment of certain properties, which was effected in execution of a decree. on the question raised as to the maintainability of the appeal on the ground that under order xxi, rule 63, civil procedure code, the aggrieved party had a right of suit to establish his claim, the appeal was incompetent.;held, that where there was a provision for finality of decision specifically enacted by statute it was intended to exclude any further appeal and hence..........this application was preferred by one c. t. senthilnathan, the claimant.(2) naturally enough, the learned judge (srinivasan j.) addressed himself to the main question whether the claimant was holding the properly under the judgment-debtor, or for the benefit of another person, or whether he was holding it in his own bona fide right. the learned judge was satisfied that the title prima facie and possession were with the applicant, in his own right and on his own account. the learned judge, therefore, concluded that this property could not be validly attached and sold as the property of the judgment-debtors, liable to be proceeded against in execution of the decree. the learned judge allowed the application and raised the attachment. the decree-holder has preferred this appeal from that.....
Judgment:
(1) The main ground upon which we are now disposing of this original side appeal can be very simply stated. In E. P. No. 24 of 1960 in O. S. 6 of 1952-53 of the District Court, Shimoga, there was an application (No. 1918 of 1962) before Srinivasan J. on the Original Side under Order XXI Rule 58, C.P.C. for raising the attachment of certain properties, which was effected in execution of the decree. This application was preferred by one C. T. Senthilnathan, the claimant.

(2) naturally enough, the learned Judge (Srinivasan J.) addressed himself to the main question whether the claimant was holding the properly under the judgment-debtor, or for the benefit of another person, or whether he was holding it in his own bona fide right. The learned Judge was satisfied that the title prima facie and possession were with the applicant, in his own right and on his own account. The learned Judge, therefore, concluded that this property could not be validly attached and sold as the property of the judgment-debtors, liable to be proceeded against in execution of the decree. The learned Judge allowed the application and raised the attachment. The decree-holder has preferred this appeal from that judgment, under Cl. 15 of the Letters Patent.

(3) Even apart from the merits, Sri Kesava Aiyangar for the claimant-respondent 1 advanced the argument that such an appeal could not be allowed. According to him it is not even maintainable. But he was content to press the argument in that form that, in any event, Order XXI Rule 63 C.P.C. could not be negated in this fashion, by the decree-holder. That rule specifically lays it down that if the claim or objection is allowed, the party against whom such an order is made (decree-holder) has to institute a suit to establish the right which he claims to the property, "subject to the result of such a suit, if any, the order shall be conclusive", and the Legislature is explicit on this point. The argument, therefore, was that we should not merely because of Clause 15 of the Letters Patent, proceed into the merits of the controversy, and differ from the learned Judge (Srinivasan J.) upon any conceivably different view of the facts. The affected party (decree-holder) has to be referred to the only remedy available to him in law, which is a remedy by way of suit.

(4) It must be immediately stated that in certain early decisions of this Court, the matter has come up for discussion, and that a view has been expressed, no doubt with considerable hesitancy, which does not seem to be in accord with the subsequent explicit views of the Judicial Committed and of the Supreme Court. It is sufficient for the purpose to refer to Venugopal Mudali v. Venkatasubbiah Chetti, 28 Ind Cas 367: (AIR 1916 Mad 883), which noticed certain earlier decision of this Court also. The question arose in a different form in that case, because an appeal was actually entertained against the order on a claim petition passed by a single Judge of the High Court, and the Bench confirmed that order; one argument advanced was that such a confirming judgment was without jurisdiction, in view of the explicit language of Order XXI Rule 63 C.P.C. The learned Judges were exercised to come to a conclusion whether the general principle was that enunciated in Order XXI Rule 63 C. P. C and the specific provision of an exception was Cl. 15 of the Letters Patent or whether a reverse view should be taken. After noticing the prior authorities, such as Sabhapathi Chetti v. Narayanswami Chetti, (1901) 11 Mad LJ 346 and Ravi Veearaghavulu v. Venkatanarasimha Naidu, 23 Ind Cas 305: (AIR 1914 PC 87), Sadasive Aiyar J. expressed the view of the Division Bench, with considerable hesitancy, that he thought that there was no warrant for interference with a longstanding practice, which was to allow such appeals, under the Letter Patent, or to reopen the question, when earlier decisions appeared to have sustained the point of view that such appeals could be maintained, notwithstanding the explicit terms of Order XXI Rule 63 C.P.C. There the matter was permitted to rest, as far this catena of decisions was concerned.

(5) But subsequently, the same principle came up for discussions, though in the context of other provisions of law, as part of the area of decision of the Privy Council judgment in Secretary of State v. Hindustan Co-operative Instance Society, AIR 1931 PC 149. The Judicial Committed explicitly stated that, where there was such a provision for finality of decision specifically enacted by statue, it was intended to exclude any further appeal, and hence that it would prevail over some general provision as to appeals, similar to that embodied in Clause 15 of the Letters Patent; the provision itself was not Clause 15 of the Letters Patent, but a distinct one.

(6) Again, in the Supreme Court decision in South Asia Industries (P) Ltd. v. Sarup Singh, , their Lordships has occasion to consider the same situation and principle, with reference to other facts. At page 1443 of the text there are explicit data to the effect that if a specific enactment makes an order of a single Judge conclusive and final, the appeal provided by the Letters Parent will not prevail over such a bar; it is only if there is no such bar that the appeal lies under Letter Patent--Vide the observations in paragraphs 11 and 13 of the text, at pages 1446 and 1447 of the report.

(7) In this view, therefore, we have no hesitation in coming to the conclusion that the earlier view expressed by the Division Bench of this Court, that we have referred to, and certain still earlier decisions noted in the judgment, may no longer be sustainable, or liable to be regarded as expressing the correct position in law. However, it is not necessary for us to proceed further in this direction, for the simple reason that we do not now have before us the situation of the canvassing of the legality or otherwise, of a judgment given by a Division Bench, in appeal from a judgment of a single Judge, which itself allowed or dismissed a claim under Order XXI Rule 58, C.P.C. read with Rule 63 C.P.C. It is sufficient for us to note that, in this appeal, it is always open to us to dismiss the appeal by referring the appellant to his true remedy at law, and the exclusive remedy provided by the statue namely, the remedy by way of a separate suit. Accordingly, we refer the appellant to this remedy and dismiss the appeal.

(8) There would appear to be, no doubt, some difficulty about limitation, since the statue permits only one year from the date of the order, for the institution of a suit. But that would depend on the further question whether the appellant could successfully claim that he has been bona fide pursuing another remedy in a Court, upon a misconception of his rights or of the processual law. Subject to satisfying the appropriate Court on this question of limitation, the appellant is referred to his remedy by way of a separate suit.

(9) This appeal is dismissed. The parties will bear their own costs.

(10) Appeal dismissed.


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