1. The question for decision is whether under the law prevailing in the Vizagapatam Agency, a suit will lie for a declaration that a certain property in respect of which a claim petition has been allowed is the property of the judgment-debtor. The plaintiff is the Maharajah of Jeypore
2. In execution of a decree for costs, he got attached a tope, to which the 3rd defendant advanced a claim that it was in his possession on behalf of a deity to whom it had been gifted before the attachment. The Special Assistant Agent, upon evidence recorded by the Agency Munsif of Jeypore and upon a report, ordered the attachment to be withdrawn and the execution petition to be struck off the file. Now the plaintiff has brought this suit to establish the title of defendants Nos. 1 and 2 to the said tope and to get the order on the claim petition vacated. Both the Special Assistant Agent and the Agent to the Governor have held that the suit is not maintainable.
3. Rule XXVI, Clause 2, of the rules framed by the Government under Act XXIV of 1839 for the guidance of the Courts in these Scheduled Districts permits decrees for a sum of money to be executed by selling the lands and other effects belonging to the party against whom the judgment may have been given. Where a question, is raised whether one of the items attached does in fact belong to the judgment-debtor, the parties have in justice and equity a right to get this question determined even though the rules may not expressly provide for claim petitions, and in the present case they did get the ownership of the tope decided by the Special Assistant Agent's order of June 19th, 1909. Order XXI, Rule 63, of the Civil Procedure Code; which gives the right to a party against whom an order in a claim petition is made to institute a suit to establish the right which he asserts, is a provision of the nature of an appeal, as it provides for the decision of a competent Court of civil jurisdiction being superseded by another decision. This provision has not been extended to the Agency Tracts of Vizagapatam, we think, purposely to prevent the unsophisticated inhabitants of those regions being harassed by bewildering multiplicity of legal proceedings.
4. Rule XIII applies to civil trials in Agency Courts only those rules of the Civil Procedure Code which relate to the examination of witnesses in appealable cases. There is no inherent right of appeal where the Statute does not create one. Consequently, the order of June 19th has become a final one. We notice that this order was based on evidence not recorded by the Judge who passed the order, and we have heard arguments as to whether that procedure was legal. Without deciding whether Rule XIII, which requires that evidence in 'all civil trials' shall be taken in the manner prescribed by the Code of Civil Procedure, has any application to claim petitions in this Agency, we are clearly of opinion that the Judge's procedure, assuming it to have been irregular, has no bearing on the question now at issue, for it has not been hitherto the case of the plaintiff that the order is void through not being based on legal evidence (in which case it would be again open to him to attach the released property), but rather that he has a right to have the order superseded by the decision in a regular suit. Moreover, it does not appear that the plaintiff took objection to the procedure of calling for a report from the Subordinate Court and acting on evidence recorded by it, either when the order was passed or in the trial of the present suit or in his grounds of appeal.
5. The Agency Courts have further decided that no suit could be brought for a declaration under Section 42 of the Specific Relief Act, as that Act is not in force in the Scheduled Districts. The Hon'ble Mr. Sarma for the appellant, quoting Robert Fischer v. Secretary of State for India in Council 26 I.A. 16, contends that independently of the Specific Relief Act, there is a Common Law right vested in every subject to have his title which is in dispute declared. It is unnecessary to discuss this point, for the nature of the present suit is not that of a mere suit for a declaration as to a legal right or character, but is essentially one to set aside a judicial order upon a claim by a 3rd party to property which was the subject of execution, and such a suit will be maintainable only in localities where by an enactment such as the Civil Procedure Code a statutory right has been created.
6. The present suit has had a previous history.
7. It was in the first instance dismissed and the dismissal order was set aside by this Court in Civil Miscellaneous Petition No. 2479 of 1907. It was therein held by another Bench of this Court that the ground upon which the Special Assistant Agent had dismissed the suit, namely, that Section 244 of the Civil Procedure Code of 1882, was a bar to the suit, was not a good one. The suit was in consequence restored to file and again dismissed.
8. The point which has now been taken was not argued at the hearing of that civil miscellaneous petition nor should the learned Judges, who decided it, be understood as meaning to say that the suit as laid was maintainable from every possible point of view.
9. The Agent's judgment is right. We dismiss the petition with costs.