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Kumara Goundan Vs. thevaraya Reddi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai
Decided On
Reported inAIR1925Mad1113; 87Ind.Cas.635; (1925)48MLJ616
AppellantKumara Goundan
Respondentthevaraya Reddi and ors.
Cases ReferredSingariah v. Chinnabbi
Excerpt:
.....that the attachment will be raised. bipin behari roy ilr (1903) c 228, the question arose in later suits unconnected with the decree though in the former the party opposed to the unsuccessful claimant was the successful decree-holder claiming in some other right. shankara venkataratnam (1917) mwn 851 (a very strong case on the facts) and by manilal girdhar v......1 and 2 in s.c.s. n0.296 of 1915. in execution of that decree (e. p. no. 959 of 1915) the decree-holder attached the suit property. the order to attach was made on nth august, 1915 and the attachment was actually made on 6th september, 1915. the sale was posted to 8th january, 1916. on 6th january, 1916 the present 3rd defendant filed a claim petition. on 8th january, 1916, the sale was adjourned to 15th january, 1916, in order to enable the court to enquire into the claim. but the claim petition was actually disallowed only on 17th january, 1916. the order disallowing the claim petition runs as follows : ' in these two cases rival claimants have preferred claims to the property in dispute. the judgment-debtors are minors and two persons purporting to be their guardians have.....
Judgment:

Ramesam, J.

1. The facts of this case are as follows : In this case one Ramanadhan Chetty had obtained a decree against defendants 1 and 2 in S.C.S. N0.296 of 1915. In execution of that decree (E. P. No. 959 of 1915) the decree-holder attached the suit property. The order to attach was made on nth August, 1915 and the attachment was actually made on 6th September, 1915. The sale was posted to 8th January, 1916. On 6th January, 1916 the present 3rd defendant filed a claim petition. On 8th January, 1916, the sale was adjourned to 15th January, 1916, in order to enable the Court to enquire into the claim. But the claim petition was actually disallowed only on 17th January, 1916. The order disallowing the claim petition runs as follows : ' In these two cases rival claimants have preferred claims to the property in dispute. The judgment-debtors are minors and two persons purporting to be their guardians have sold in one case the whole property and in another half the property to the two purchasers respectively who are adjacent land owners. The contest is practically between the two claimants and a suit is inevitable. On the grounds that the claims have been preferred too late and the delay is not satisfactorily explained, I disallowed the claim.' Seeing that the attachment was made on the 6th September, 1915 and the claim petition was filed on 6th January, 1916 it is difficult to believe that there was such a serious delay in the case as to justify a dismissal without enquiry. It is doubtful that the District Munsif really meant to dismiss the claim petition on the ground of delay in view of his remark ' The contest is practically between two rival claimants and a suit is inevitable.' He seemed to think that whatever his order was, a regular suit was so certain that to enquire into the merits at that stage would be a waste of time and it was desirable to avoid waste of time at that stage. It is, therefore, difficult to construe the District Munsif's judgment as one dismissing the petition on the ground of delay in spite of the express statement to that effect. If the judgment of the District Munsif cannot be regarded as one disposing of the claim petition on the ground of delay, then the Full Bench decision in Venkataratnam v. Ranganayakamma ILR (1918) M 985 : 35 MLJ 335 does not apply; and the issue which raises the question of title will have to be gone into. But I do not wish to rest my judgment in this case solely on this ground in view of the ambiguous nature of the District Munsif's order. Mr. Krishnaswami Aiyar has contended that E. P. No. 959 of 1915 was dismissed and with its dismissal the attachment has ceased to exist under Rule 57 of Order 21, Civil Procedure Code. The E. P. No. 959 of 1915 with all orders thereon up to 1st February has now been exhibited in Second Appeal as Ex. A. E. P. No. 196 of 1916 is exhibited as Ex. B. What happened was that on 17th January, 1916, after the claim petition was disallowed the decree-holder requested the Court to stop the sale. At any rate that is the note made on the execution petition. Mr. Krishnamachari who appears for the respondent now suggests that that was not the result of the unwillingness on the part of the decree-holder to proceed with the sale but it was at the suggestion of the District Munsif that he stated he would file another petition and was willing to withdraw the same. He relies on E. P. No. 196 of 1916 which was filed on the 31st January, 1916, and on which an order was made directing notice for fresh proclamation. This was ordered on 21st February, 1916. In that petition, the petitioner stated that the Court suggested that another petition may be filed on 1st February. No doubt the facts are somewhat suspicious and support Mr. Krishnamachariar's suggestion. But the first petition was not very old at the time and there does not seem to be any particular reason why the District Munsif should be anxious to have it taken out of the file for statistical purposes being only five months old and suggest to the party to file another petition. If the District Munsif did so for such purposes no doubt it is improper. The decree-holder seemed to be willing to oblige the District Munsif. Anyhow he was willing that the fact should appear as if he was not prepared to proceed with the E. P. No. 959 of 1915 on 17th January, 1916. The final order in E. P. No, 959 of 1915 on the 1st February was that the petition was dismissed. Whatever the effect of that order was between the decree-holder and the judgment-debtor, persons who are not parties to the execution proceedings and who do not know all that passed between the Court and the decree-holder are entitled to rely on the fact that the petition was dismissed on account of the unwillingness of the decree-holder to proceed with E. P. No. 959 of 1915. The result of this was that the attachment ceased to exist under Order 21, Rule 57. Though a fresh order on E. P. No. 196 of 1916 was taken without a fresh attachment and is final and binding between the decree-holder and the judgment-debtor and cannot be questioned on account of want of attachment, the present 3rd defendant is entitled to rely on the result of the dismissal of the earlier petition and say that the attachment has ceased to exist so far as he is concerned.

2. If the attachment has ceased to exist the next question that arises is whether the order on the claim petition, dated 17th January, compels the 3rd defendant to set it aside within one year and precludes him from raising his title in the absence of his suit within one year. On this question it is convenient if I make an extract from my judgment in A.S. No. 36 of 1920 referring this identical point to the Full Bench.

3. The appellant next contends that the order of 8th August, 1916, has not got to be set aside because the attachment to get rid of which, the claim petition was filed, had ceased to exist.

4. I will first observe that the effect of an order on a claim petition may be different according as the judgment-debtor is or is not a party to the inquiry. It was pointed out in Moidin Kutti v. Kunhi Kutti Ali ILR (1902) M 721 : 12 MLJ 411 that the judgment-debtor may not be a party to the inquiry on the claim petition and in such a case the order though in favour of the claimant and opposed to the judgment-debtor's rights need not be conclusive against the judgment-debtor if no suit is filed by him within one year to set it aside. Conversely, if adverse to the claimant and in' favour of the judgment-debtor it need not be set aside by the claimant to the full extent it may sound in favour of the judgment-debtor and has to be set aside only so far as the order is in favour of the decree-holder concerned. If the judgment-debtor is a party, then the order on the claim petition decides not only questions between the claimant and the decree-holder, but also questions between the claimant and the judgment-debtor, the latter being in general much broader in scope than the former. To put it in other words : as soon as a claim petition is filed, there are three possible parties to the inquiry--the claimant, the decree-holder and the judgment-debtor and we may have two classes of cases : (1) Cases in which all three are parties. In such a case an order against the claimant will be wider in scope and has effects reaching much farther than in the second class. (2) Cases in which the claimant and the decree-holder are the only parties. In this case the order is narrower in scope and its consequences are not so far-reaching as in class (1).

5. An example will make my meaning clear. A obtains a decree against B for Rs. 200 and attaches a house worth Rs. 3,500. C claims ownership of the house and objects to the attachment. If A, B and C are parties to the inquiry and the claim petition is dismissed, it is obvious that the effect of the order is to hold that C is not the owner of the house and B is the owner, the order in favour of B operating to help A and other creditors of B. A regular suit by C in such a case to set aside the order to the fullest extent has to be valued at Rs. 3,500 and has to be filed in a Court competent to try that suit.

6. But if only A and C are parties to the inquiry, the effect of the dismissal of C's petition is simply to hold that A has got a right to pursue the attachment and C has not got a right to object to the attachment. It is not to decide that C is not the owner of the property and that B is. A regular suit to set aside the order should be valued at Rs. 200 and not at Rs. 3,500 and may be filed in the District Munsif's Court. It may be that the reason of the order is that C is not the owner and it may be that, in the regular suit that follows, the issue that may be framed relates to the title of C (especially so if B is a party to the suit). These remarks follow from Krishnaswami Naidu v. Somasundaram Chettiar ILR (1907) M 335 : 17 MLJ 95 , Sadaya Pillai v. Amurthathachy ILR (1910) M 533 and Vedalingam Pillai v. Veerathal : (1919)37MLJ547 . I will refer to these cases later on again, but at present I have made these general remarks as it is useful to remember the distinction in the discussion of cases.

7. The earliest case on the point raised before us is Umesh Chunder Roy v. Raj Bullubh Sen ILR (1882) C 379. At page 281, Tottenham, J. says : ' The finding of the Court in the execution department that the sale was invalid only meant that the sale was invalid as against the judgment-creditor, and as against any purchaser who might purchase at a sale held in execution following that attachment. ' In view of the latter clause, I do not see what meaning can be obtained by laying special emphasis on the words ' against the judgment-creditor. ' It may be that the reason of the order on the claim petition in that case was that the sale was made during attachment (see Section 64 of the present Code) but I do not see what argument can be derived from this fact unless the order on the claim petition which held that ' the sale was invalid ' expressly limited the operation of the order to claim petitions objecting to the particular attachment and saved other claim petitions to other possible attachments. The fact remains that the claim was dismissed with a general opinion that the sale was invalid without any limitation on the effect of the opinion.

8. The next case is Ibrahimbai v. Kabulabai ILR (1888) B 72. Bird-wood, J. said : 'The second attachment was a new and distinct act giving a new cause of action on which the plaintiff is entitled to a fresh enquiry and decision.' This was followed in Gopal Purshotam v. Bai Divali ILR (1893) B 241 in which Sargent, C. J. says 'when that attachment was removed by the judgment-creditor's own act on 20th November, 1888, there was no longer an attachment or any other proceedings, etc.' In Krishna Prasad Roy v. Bipin Behari Roy ILR (1903) C 228 their Lordships say at page 231 : 'The object of the claim preferred by the plaintiff under Section 278, Civil Procedure Code, was to obtain the removal of the attachment, and when that attachment had been removed after payment of the decretal amount there was no longer an attachment or any proceeding in execution on which the order could operate to the prejudice of the plaintiff, and therefore there was no necessity to hiring a suit to set aside the order We are unable to accept the view suggested on behalf of the appellants that, in spite of the withdrawal of the attachment, the dismissal of the claim under Section 281, Civil Procedure Code, could, by virtue of the provisions of Section 283, Civil Procedure Code, have the effect of finally determining the question of title between the parties. '

9. The next case is Koyymna Chittemma v. Doosy Gavaramma ILR (1905) M 225 : 16 MLJ 136. It does not appear clearly from the facts whether the judgment-debtor was a party to the claim proceedings though, on the whole, it looks as he was not. The order on the claim petition was held conclusive against the claimant as between and a subsequent vendor from the judgment-debtor. I am indebted to my learned brother (Spencer, J.) for the suggestion that this case can be justified on the ground that the subsequent vendor paid off the amount of the decree in execution of which the claim was preferred and may therefore be regarded as having been subrogated to the rights of the execution-creditor. This was not the actual ground of the judgment which seems to proceed on a too literal reading of Section 283. The learned Judges distinguish the cases in Umesh Chunder Roy v. Raj Bullubh Sen ILR (1882) C 279 Ibrahimbai v. Kabulabai I LR (1888) B 72, Gopal Purshotam v. Bai Divali ILR (1893) B 241 and Krishna Prasad Roy v. Bipin Bethart Roy ILR (1963) C 228 on the ground that in all these cases, the raising of the first attachment was within a year of the order on the claim proceedings. I find it difficult to follow this ground of distinction. In the first place, if it is conceded that the order becomes useless and inoperative when the attachment ceased within one year of the order, this is a concession not allowed by the literal reading of the section. Secondly, if the operativeness of an order on a claim petition is to be regarded as conditional on the continuance of the attachment, it is difficult to see why the cession of the attachment within one year should destroy the operativeness and the cessation of it beyond one year should have just the opposite effect merely because a suit to set aside could not be brought more than one year after the date of the order. It seems to me a novel legal conception. Thirdly, the fact that the decrees were paid off within one year seems to be an accident. Not one of the eight Judges laid any emphasis on the fact. The only difference I can see between the two cases (the raising of the attachment within one year and its raising beyond one year) is that in the former case, the unsuccessful claimant who waits incurs no risk as he knows for certain within one year that the attachment in execution of it has ceased to exist and in the latter he takes a risk by not suing as he cannot be certain that the attachment will be raised. But I do not see why when the event, on which he takes his chance, viz., the cessation of the attachment by the payment of the decree or for other reason, happens, he should not take advantage of it simply because he took risks in so waiting. This distinction has not been approved by Seshagiri Aiyar, J., in Vedalingum Pillai v. Veerathal : (1919)37MLJ547 and the decision in Chittemma v. Doosy Gavaramma ILR (1905) M 225 : 16 MLJ 136 must be regarded as unsound except on the ground that the judgment-debtor must be regarded as a party to the order on the claim proceedings. This is how it was treated in all cases in which it was cited with reference to this point in Krishnaswami Naidu v. Somasundaram Chettiar ILR (1907) M 335 : 17 MLJ 95 and Ponaka Balarami Reddi v. Hazi Mahomed Abdul : AIR1915Mad57 . In my opinion, after these cases, it is futile to rely on Koyyana Chittemma v. Doosy Gavaramma ILR (1905) M 225 : 16 MLJ 136 as an authority of any value.

10. Another distinction has been suggested by the respondents in respect of the cases in Umesh Chunder Roy v. Raj Bullubh Sen ILR (1882) C 279, Ibrahimbai v. Kabulabai ILR (1888) B 72, Gopal Purshotam v. Bai Divali ILR (1893) B 241 and Krishna Prasad Roy v. Bipin Behari Roy ILR (1903) C 228. It is said that the question of the collusiveness of the order arose in a proceeding unconnected with the decree in the execution of which the claim was preferred. In Umesh Chunder Roy v. Raj Bullubh Sen ILR (1882) C 279 and Ibrahimbai v. Kabulabai ILR (1888) B 72 the point arose in connection with the execution of a second decree though in Umesh Chunder Roy v. Raj Bullubh Sen ILR (1882) C 279 it was a second decree based on the same right as the first. In Gopal Purshotam v. Bai Divali ILR (1893) B 241 and Krishna Prasad Roy v. Bipin Behari Roy ILR (1903) C 228, the question arose in later suits unconnected with the decree though in the former the party opposed to the unsuccessful claimant was the successful decree-holder claiming in some other right. The contention amounts to this, viz., the order is conclusive against the claimant in so far as he seeks to resist the particular decree though the attachments may be different but not conclusive as against different decrees though of the same decree-holder and a fortiori of different decree-holders. The distinction no doubt helps the respondents in the present case but is opposed to the decision in Gollampalli Subbayya v. Shankara Venkataratnam (1917) MWN 851. Incidentally I may observe this distinction concedes that the decisions in Koyyana Chittemma v. Doosy Gavaramma ILR (1905) M 225 : 16 MLJ 136 and in Singariah Chetti v. Chinnabbi ILR (1920) M 268 : 40 MLJ 7 are erroneous and that the language of Order 21, Rule 63 should not be taken too literally. 1 think the distinction in so far as it seeks to apply the conclusiveness of an order to different attachments in execution of the same decree is opposed to the principle of Krishnaswami Naidu v. Somasundaram Chettiar ILR (1907) M 335 : 17 MLJ 95 the reasoning in which equally applies to a case where there is a decree for costs to the extent of Rs. 200 and for mesne profits of the value of Rs. 3,500 and the first attachment was for costs only and the latter attachment is for the mesne profits. I also observe that the emphasis in all the four cases is on the non-identity of the attachments and not of the decree as the words underlined by me in the quotations from those judgments show.

11. If the language of Order 21, Rule 63 is read literally it may apply not only-

(a) to claimants resisting rights worked out in pursuance of the attachment to which the claim is made (in my opinion the operation of the rule ought to be confined to this class) but also to

(b) (1) between the claimant and other attachments under the same decree;

(2) between the claimant and attachments under other decrees of the same decree-holder;

(3) between the claimant and the decree-holder, whatever the right be on which he relies;

(4) between the claimant and all other decree-holders of the same judgment-debtor and all other persons claiming rights against the same judgment-debtor such as mere creditors who have not obtained decrees;

(5) between the claimant and judgment-debtor (including his assignees);

(6) between the claimant and all persons, (even if unconnected with the judgment-debtor) interest in denying the title of the claimant. See Vedalingam Pillai v. Veerathal : (1919)37MLJ547 .

12. To allow the extension of the section so as to apply to class (6) is to create a species of orders in rem which are unknown except in Probate and Matrimonial proceedings. Even the doctrine of res judicata does, not apply so as to bar a person A from urging his right against C by reason of a former adjudication (adverse to A) between A and B. [Justice Holloway points out in Sri Rajah Kakarlapudi Suryanara-yarinraju Garu v. Chellamkuri Chellamma (1870) 5 MHCR 176 that such a plea is allowed in Continental jurisprudence].

13. To allow the extension to class (5) is to ignore the distinction between the cases where a judgment-debtor is a party and where he is not which I pointed out at the beginning of the judgment. ,

14. To allow the extension to class (4) is to imagine that mere simple creditors and money decree-holders have got some interest in the property of their debtors and judgment-debtors though there is no charge on the property and not even attachment of it.

15. To allow the extension to classes (2) and (3) is to imagine that a person A, by merely obtaining a decree against B and attaching B's property under it has got a right to predicate that B is the owner of the property and not C for the purpose of all possible decrees he may obtain against B and all other purposes in respect of which he may come into conflict with C--a right unknown to law.

16. To allow the extension to class (1) is inconsistent with Krishnaswami Naidu v. Somasundaram Chettiar ILR (1907) M 335 : 17 MLJ 95 and ignores the possibility of a decree being paid up by the judgment-debtor, or of an attachment being raised.

17. My view is supported by the two Bombay decisions and the two Calcutta decisions I have already mentioned by Ponaka Balarami Reddi v. Hazi Mahomed Abdul : AIR1915Mad57 (though the point was not necessary for the decision) by Gollampalli Subbayya v. Shankara Venkataratnam (1917) MWN 851 (a very strong case on the facts) and by Manilal Girdhar v. Nathalal Mahasukhram ILR (1920) B 561. Ignoring Koyyana Chitlemma v. Doosy Gavaramma ILR (1905) M 225 : 16 MLJ 136 the only decision in favour of the appellants is Singariah Chetti v. Chinnabbi ILR (1920) M 268 : 40 MLJ 7. I have already commented on this in Lakshmi Ammal v. Kadiresan Chettiar : AIR1921Mad488 and one of the decisions I have referred to in this judgment except Gollampalli Subbayya v. Shankara Venkataratnam (1917) MWN 851 has been cited in it. It was based on a decision in Ramaswami Chetti v. Alagiri Chetti 27 IC 800 in which the only question decided was whether the suit abated by reason of the satisfaction of the decree. The Code provides for no abatement except on death. Their Lordships held that the suit did not abate. I do not think it is permissible to infer from this that the order on the claim inquiry continues operative after the cessation of the attachment in a case where no suit was filed. I think the filing of the suit makes all the difference. The decisions in Ponnuswami Pillai v. Samu Ammal : (1916)31MLJ247 , Lakshmanan Chettiar v. Parasivan Pillai : (1919)37MLJ159 and Velu Padayachi v. Arumugam Pillai (1919) 38 MLJ 397 do not help us as they are plain examples of the application of Order 21, Rule 63 without the complications of the Cessation of the first attachment. I think the decisions in Singariah Chetti v. Chinnabbi ILR (1920) M 268 : 40 MLJ 7 and Gollampalli Subbayya v. Shankara Venkataratnam (1917) MWN 851 are irreconcilable. Some reliance has been placed on the language of Section 64 of the Code. When we remember that Section 64 and Order 21, Rules 58--62 used to be in the same chapter of the former Codes, Section 64 supports my view and shows that the object of the Legislature in providing against obstacles and objections to an attachment is the protection of rights created in pursuance of the attachment only.'

18. The view I there took was that an order on a claim petition is final against the claimant in so far as the rights worked out in pursuance of the particular attachment are concerned. The only thing that I would now add in addition to the reasons given there is that Order 21, Rule 58 runs : 'Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, etc. ' The language of the rule, especially the words ' such attachment ' I think, supports my reasoning in the passage quoted above. Seeing that there are a number of decisions of this High Court taking this view, namely, Ponaka Balarami Reddi v. Hazi Mahomed Abdul : AIR1915Mad57 , Gollampalli Subbayya v. Shankara Verikataratnam (1917) MWN 851 and Sadaya Pillai v. Amurthathachy ILR (1910) M 533 inasmuch as my learned brother agrees with my view, I do not think it is necessary to refer this case to the Full Bench solely on account of the decision in Singariah v. Chinnabbi ILR (1920) M 268 : 40 MLJ 7. The second appeal will, therefore, be allowed and the suit remanded for fresh disposal as regards 3rd defendant. The appellant will have a refund of the Court-fees paid in this Court and in the Lower Appellate Court. Costs in the first appeal and second appeal will be paid by the appellant as he has not raised the point about the cesser of attachment by filing the two execution petitions which have not been exhibited. Costs in the Court of first instance to abide the result.

Venkatasubba Rao, J.

19. I agree and have nothing to add.


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