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Kandasami Mudaliar Vs. Sivagarunatha Mudaliar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad328
AppellantKandasami Mudaliar
RespondentSivagarunatha Mudaliar and ors.
Cases ReferredLingama Naidu v. Official Receiver Madura
Excerpt:
- - the question for determination is whether defendant 1 is barred from resisting the claim of the plaintiff by her failure to establish her right to the property by instituting a regular suit after the dismissal of her claim petition. pydanna 1925 mad 265 the claimant withdrew his petition and the court endorsed on it not pressed, dismissed. 10. the present case, as i have already-said, having regard to the point for decision, is exactly like the case in lingama naidu v......order as provided by article 11, lim. act. in venkataratnam v. ranganayakamma 1919 mad 738 a full bench decision of this court, it was held thatan order refusing to investigate a claim to attached property, on the ground that there was delay in filing it, is an order passed against the claimant within order 21, rule 63, civil p.c., and article 11, limitation act (9 of 1908), and that an order on a claim petition merely stating that, as it was filed late, it will be notified to the bidders, is in effect an order rejecting the claim to which the provisions of order 21, rule 63, will apply.4. according to this decision, when the property is ordered to be sold without releasing it from attachment, an order might be said to have been made against the claimant and he is bound to institute a.....
Judgment:

Madhavan Nair, J.

1. Defendant 2 is the appellant. The plaintiff purchased the suit property in execution of the decree in 0.S. No. 89 of 1919, on the file of the District Munsif's Court of Chidambaram which he had obtained against defendant l's father, one Nataraja. Mudaly. In the course of the execution proceedings defendant 1 preferred a claim on 16th November 1922 claiming the suit house as belonging to her, she-having inherited it from her husband: Nagaratna Mudaly to whom it originally belonged. This claim petition is Ex. F. When this petition came on for hearing,, on 29th November 1922, she stated that she would bring a regular suit to establish her claim and did not press the-petition; and hence it was dismissed on 29th January 1922. The order on the petition which was passed after issue of notice to the present plaintiff is as follows:

The petitioner says that he (she) will bring; a regular suit and that he does not press this. So this is dismissed.

2. After the dismissal of the petition she-did not bring a suit to establish her claim. The present appellant claims the property through her. It is not necessary to discuss the merits of his claim as against the merits of the plaintiff's claim to the property, as the lower Courts have found that the plaintiff has not established his title. On the merits the District Munsif dismissed the plaintiff's suit, but on appeal the learned Judge held that in the face of Ex. F, the claim order, defendant 1 is barred from resisting the claim of the plaintiff, and as defendant 2 claims through her, he is also barred from asserting his rights. The question for determination is whether defendant 1 is barred from resisting the claim of the plaintiff by her failure to establish her right to the property by instituting a regular suit after the dismissal of her claim petition. Defendant l's objection petition was filed under Order 21, Rule 08, Civil P.C.; Rule 63 of the order says:

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.

3. The suit contemplated by this rule will have to be instituted within the period of a year from the date of the order as provided by Article 11, Lim. Act. In Venkataratnam v. Ranganayakamma 1919 Mad 738 a Full Bench decision of this Court, it was held that

an order refusing to investigate a claim to attached property, on the ground that there was delay in filing it, is an order passed against the claimant within Order 21, Rule 63, Civil P.C., and Article 11, Limitation Act (9 of 1908), and that an order on a claim petition merely stating that, as it was filed late, it will be notified to the bidders, is in effect an order rejecting the claim to which the provisions of Order 21, Rule 63, will apply.

4. According to this decision, when the property is ordered to be sold without releasing it from attachment, an order might be said to have been made against the claimant and he is bound to institute a suit to establish his right, if he wants to claim the property, within a year from the date of the order. Wallis, C. J., in the course of his judgment, pointed out:

Rule 63 does not speak of any party but of the party against whom an order has been made, and assumes that, where a claim or objection is preferred under Rule 58, there must always be a party against whom an order is made within the meaning of the rule.

Seshagiri Ayyar, J., observed:

His (claimant's) right to raise the attachment must be deemed to have been negatived when the property was ordered to be sold without releasing it from attachment.

5. This judgment is strongly relied upon by the respondent in support of the lower Court's decision. No doubt the decision supports him; but, as the learned Counsel for the appellant points out, this decision has been explained in subsequent cases and the trend of opinion in this Court now is to treat it as being confined to the particular facts of that case and to cases where a claim was dismissed as too late. In Abdul Kadir v. Somasundaram Chetti 1923 Mad 76, Sir Walter Schwabe, C.J., in a, case referred to him on account of difference of opinion between Spencer and Krishnan, J., observed that

the Full Bench held, and held only that where a decision is given on the ground that the matter has been designedly or unnecessarily delayed, that is a decision and an order against the applicant under Order 21, Rule 63, to which Article 11 applies.

6. In Lakshminarasamma v. N. Pydanna 1925 Mad 265 the claimant withdrew his petition and the Court endorsed on it not pressed, dismissed.' It was held that

the Court's order was not under Order 21, Rule 63, and the petitioner was not bound to bring the suit within a year.

7. In Lingama Naidu v. Official Receiver Madura (1928) 110 IC 511, the next decision relied on by the appellant's counsel, the facts were similar to the facts in the present case. In that case

the appellant applied to withdraw the claim petition saying that he would file a regular suit. The District Munsif without going into the merits of the claim on this application to withdraw dismissed the claim petition on 9th July 1923.

8. With reference to the Full Bench: case in Venkataratnam v. Ranganayakamma 1919 Mad 738 cited before them the learned Judges pointed out that

Schwabe, C.J., was inclined to treat the Full. Bench decision in Venkataratnam v. Ranganayakamma 1919 Mad 738 as being confined to the facte of that particular case and to oases where a claim was dismissed as too late.

9. Then the learned Judges summarized the result of the authorities thus:

The result of the authorities seems to us to be that Rule 63 has no application to cases where a claim has not been disposed of on the merits or rejected as being too late. All other modes of disposal are treated as modes of disposal which do not entail on the party on whom an adverse order is made the duty of filing a suit to set it aside. In other words, Rule 63 does not apply to such methods of disposal and the Pull Bench decision in Venkataratnam v. Ranganayakamma 1919 Mad 738 should be confined to cases where the disposal has been either on investigation or refusal to investigate on the ground that the claim is filed too late.

10. The present case, as I have already-said, having regard to the point for decision, is exactly like the case in Lingama Naidu v. Official Receiver Madura (1928) 110 IC 511 and I see no reason why I should not follow that decision. In the decisions that I have referred to, the Full Bench decision has not been given a general application and has been confined to its own particular facts. In these circumstances I do not feel I am called upon to refer the Pull Bench decision in Venkataratnam v. Ranganayakamma 1919 Mad 738 for re-consideration to another Full Bench; especially so, having regard to the facts of this case which show that the plaintiff has no title to the property and that the point that 'Ex. F is a bar to the assertion of a, ciaim by defendant 1, was taken for the first time in the lower appellate Court. Following the decision in Lingama Naidu v. Official Receiver Madura (1928) 110 IC 511, I set aside the decision of the lower appellate Court and restore that of the District Munsif with costs here and in ifche Court below.


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