1. An interesting question Of law has arisen for consideration in this appeal.
2. The appellant herein filed a suit, 0. S. 6614 of 1973, on the file of the City Civil Court, Madras, for recovery of a sum of Rs. 36,887.97, from the second respondent, who is the defend-ant in the suit. Pending the suit, the plaintiff applied for attachment of the house property said to belong to the second respondent before judgment in 1. A. No. 23042 of 1973. The said house property was in fact attached on 10-12-1973. The first respondent herein, Who is the wife of the second respondent defendant filed -a claim petition in 1. A. 465 of 1974, claiming that the property attached did not belong to the second respondent but it belonged exclusively to her and therefore the attachment should be vacated. During the pendency of the said claim petition, the suit itself came to 'be decreed on 5-2-1974. The claim petition 1. A. No. 465 of 1974, filed by the first respondent was dismissed for default on 3-10-1974, and the attachment effected on 10-12-1973 was made absolute. Subsequently, the appellant filed an execution petition E. P. 943 of 1973 on 7-12-1974 and brought the attached property to sale and a sale notice was actually issued to the second respondent on 9-12-1975.After the receipt of the sale notice by the second respondent, the first respondent herein filed another claim petition E. A. 1568 of 1974 at the execution stage on 3-2-1976 claiming that the property sought to be sold is her exclusive property and does not belong to the second respondent. The said claim petition was resisted by the appellant-decree holder on the ground that the earlier claim petition filed by the first respondent in 1. A. 465 of 1974 having been dismissed for default, she is not entitled to file a second claim petition and that the only remedy open to her is to file a suit under 0. 21, R. 63, C. P. C. against the order dismissing her first claim petition for default. This objection has been rejected by the Court below on the ground that the earlier claim petition was dismissed for default and not on merits and that the present claim petition, being the first petition in execution, is maintainable. The Court below also went into the merits of the claim put forward by the first respondent herein and held that Exts. P.1 to P-3 establish that the property attached and sought to be sold by the decree-holder belongs to the claimant and riot to the judgment debtor, that the latter, had no right, title or interest over, the same and that, therefore, the decree-holder, cannot proceed against this property. In this view, the claim Petition had been allowed by the Court below. The validity of the said order has been challenged in this appeal by the appellant-decree-holder,.
3. The learned counsel for the appellant refers to the Full Bench decisions of this Court viz.,M. Prasada Naidu v. Virayya, (1918) ILR 41 Mad 849: (AIR 1918 Mad 26) and Cannanore Bank Ltd. v. Madhavi, AIR 1942 Mad 41, and submits that as per the said decisions, the dismissal of the entire claim petition for default will have to be taken as an order passed against the claimant, that the order dismising the claim petition for default though made in the proceedings for attachment before judgment, the provisions of 0. 21, R. 63, C. P. C. will come into play, that as per the said provision, the claimant whose claim petition has been dismissed earlier, should file a suit within one year from the date of the order and that in the absence of instituting any such suit, the order will be taken to have become final and conclusive as between the parties. The learned counsel also refers to the decision in Bhailal Tanti v. Prabhu Sahu, , wherein the
decision of this Court in AIR 1942 Mad 41 (FU) is followed.
4. The lower Court has referred to the decisions in and AIR 1942 Mad 41 (1711), but stated that the said decisions have no application to the facts of the present case.
5. Before proceeding to consider the decisions referred to by the learned counsel for the appellant we would refer to the relevant provisions of the Civil P. C., as were in force at the time when the claim against the order of attachment before judgment was dismissed for default. Order 38, R. 5, C. P. C. enables the Court to attach the defendant's specified property on such portion thereof as it appears sufficient to satisfy any decree which may be passed in the suit. Rule 7 of 0. 38, states that the attachment shall be made in the manner provided for the attachment in execution of a decree. Rule 8 states as follows:-
"Where any claim is preferred to property attached before judgment, such claim shall be adjudicated upon in the manner hereinbefore provided for the adjudication of claims to property attached in execution of a decree for the payment of money."
These provisions in Rr. 7 and 8 make it clear that the manner of attachment before judgment and the manner of adjudication of claims to property so attached shall be same as an attachment in execution of a decree and adjudication of claims to property attached in execution of a decree. The provisions dealing with the adjudication of claims to property attached in execution of a decree are contained in 0. 21, Rr. 56 and 63, C. P. C. while Rule 56 sets down the procedure for adjudication of claims in respect of property attached in execution of a decree, Rule 63 provides for the filing of a suit to establish right to attached property. This provision is as follows :-
"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 such suit, if any, the order shall be conclusive."
Since 0. 38, R. 8, C. P. C. directs that adjudication of claims to property attached before judgment should be done in the same manner as an adjudication against claims against attachment of the property in execution of a decree, 0. 21, Rr. 58 and 63, Civil P. C. will automatically apply to the claims made against an order of attachment before judgment.
6. In this case, as will be clear from the facts set out already, the attachment before judgment of the house property was effected on 10-12-1973 and the order dismissing the claim petition was passed on 3-10-1974. The one year period referred to under 0.21, R. 63, C. P. C. had, therefore, expired on 3-10-1975, long before the filing of the second claim petition on 3-2-1976. The Court below has taken the view that since the attachment was made before judgment, the dismissal of the earlier claim petition for default will not be a bar to the first respondent herein filing a fresh claim petition in the execution stage after the decree-has been passed. It has also taken the view that the order dismissing the earlier claim petition on 10-12-1973 be in an order of dismissal for default cannot be said to be an order passed on merits so as to constitute res judicata. The question is whether the view taken by the Court below is legally tenable.
7. Dealing with the scope of 0. 21, R. 63, C. P. C. as it stood before the amendment of the Civil P. C. by Central Act, 104 of 1975, a Full Bench of this Court in Prasada Naidu v. Virayya, (1918) ILR 41 Mad 849: (AIR 1918 Mad 26), held that 0. 38, R. 5 will attract the provisions of
0. 21, R. 63, in respect of claims preferred to property attached before judgment and that the general policy of the law is that questions of title raised by claims against attachment before judgment or after judgment should be promptly disposed of and, that as has been pointed out by the Privy Council in Kissorymohun Roy v. Harsukh Das. (1889) ILR 17 Cal 436 (PQ, Order 21, Rule 63, C. P. C. was applied without question to a case of attachment before judgment as well.
8. In Cannanore Bank Ltd. v. Madhavi, AIR 1942 Mad 41, another Full Bench of this Court had ruled that 0. 21, R. 63 applies to all orders which are against claims preferred under R. 58 of 0. 21, C. P. C. that the order passed under R. 58 need not necessarily be on merits, and that the test is to see whether the order is against the claimant or the decree-holder and that it does not mean that the order must involve an adjudication on the merits after investigation. In that case a claim petition was filed but that was allowed to be dismissed as not pressed. The question arose whether that order will attract the provisions of 0. 21, R. 63, C. P. C. The Full Bench was of the view that such an order will be an adverse order within the meaning of the rule and that an order of dismissal for default will also fall within the mischief of that rule. This decision is clearly applicable to the facts of the present case. Here the earlier claim petition was dismissed for default and that will be an order adverse to the claimant and therefore R. 63 of 0. 21 will stand attracted. The earlier Full Bench decision, reported in M. Prasada Naidu v. Virayya, (1918) ILR 41 Mad 849: (AIR 1918 Mad 26) makes it clear that 0. 21, R. 63 will also apply to the claims preferred against the order of attachment before or after judgment. Thus the reasoning of the Court below that the dismissal of the earlier claim petition for default having been made at the stage of attachment before judgment, will not come within the mischief of 0. 21, R. 63, C. P. C. is not legally tenable. Though the decision inCannanore Bank v. Madhavi, AIR 1942 Mad 41 (FB) was cited before the Court below, that decision has not been followed as it was of the view that the facts of the present case are different. We are of the view that the facts in this case clearly attract the principles laid down by the two Full Bench decisions above referred to.
9. Since admittedly the first respondent herein has not filed a suit to challenge the dismissal of the earlier claim petition at the stage of attachment before judgment, the said order of dismissal has become final and conclusive as per 0. 21, R. 63 which was in force at the time of attachment effected before judgment. No doubt it is true that 0. 21, R. 63 has been deleted by the Central Act, 104 of 1976, but even before the deletion, the right to question the order passed in the claim petition in 1. A. 465 of 1974 by filing a suit has been lost even on 3-11975 and the said right cannot be said to have been revived after the deletion of the said provision in R. 63, 0. 21, C. P. C by Central Act, 104 of 1976. We cannot if therefore sustain the decision of the lower Court
10. Hence, we allow the appeal and set aside the order of the lower Court. The claim petition E. A. 1568 of 1976 for raising the attachment over the property will stand dismissed. There will be no order as to costs. The execution proceedings will be proceeded with further on the basis that the attachment of the property continued to subsist.
11. Appeal allowed.