1. The only point for determination in this Second appeal is whether the suit is barred by Section 47, Civil P.C. The plaintiff is the widow of the defendant in O.S. No. 16 of 1915, on the file of the Bundar Sub Court; and as the defendant died before execution was completed, she was added as his L.R. When the creditor attached certain properties as belonging to the deceased husband of the plaintiff, she filed an application (S.A. No. 252 of 1930, claiming that the attached property belonged to her under a sale deed of 1896. This application purported to be filed both under Order 21, Rule 58, and under Section 47, Civil P.C. It is fairly well settled that when a person, who has been impleaded as the L.R. of a defendant or a judgment-debtor claims that certain properties attached as the property of the judgment-debtor are his own, his remedy is by an application under Section 47 and not by an application under Order 21, Rule 58; but to avoid any possible objection, E.A. No. 252 of 1930 was put in under both the provisions.
2. There are however important differences in legal consequences between an application under the one provision and an application under the other, in respect of the further remedies open to the applicant. If the application is only under Section 47, the applicant's remedy in the event of an adverse order on that application is to appeal against that order whereas if the application is really one under Order 21, Rule 58, the applicant's remedy will be by a regular suit. The learned Subordinate Judge who dealt with the application did not bestow sufficient thought on this aspect of the matter and passed a brief order in the following terms:
The claim is based on a sale deed of 1896; but some years later the judgment debtor, ignoring that deed though executed by himself, mortgaged the property on his own account and dealt with it as his own. Further the attachment now questioned was effected in 1925 and September 1929, and this petition is put in only this year, i.e. 25th February 1930, though the petitioner is a resident of the same village. In these circumstances I am not prepared to uphold the claim and refer the petitioner to a regular suit. The petition is dismissed.
3. It is obvious that the present suit has been filed on the strength of the observation in the concluding portion of the above order. The Courts below are certainly right in holding that in the ordinary course the matter is one to be dealt with under Section 47 and the plaintiff's remedy was to have appealed against the order on E.A. No. 252 of 1930 and not to file a separate suit. On behalf of the appellant, Mr. Satyanarayana Rao contends that whatever might have been the position, if the order had merely resulted in a dismissal of the claim, it is not right that this suit should be dismissed as barred under Section 47 when the learned Judge himself referred the petitioner to a regular suit. Much as I sympathise with the position in which the plaintiff has been placed by that remark of the learned Judge, I am sorry I can find no legal principle on which I can allow that remark to override the provisions of the law. There are no doubt cases where a wrong order as to whether the proper remedy of a party is by a suit or by an application has been held to preclude the other party from afterwards contending to the contrary in a fresh application or suit. But those decisions rest either on the principle of estoppel or on the principle of res judicata.
4. There is unfortunately no scope for the application of either of those principles here. Whether the matter was one to be dealt with under Section 47 or one to be dealt with under Order 21, Rule 58, E.A. No. 252 of 1930 was undoubtedly competent. Its maintainability therefore could not have been objected to. If, for instance, on appeal therefrom the other party had objected that no appeal lay, or the Court had at least held that no appeal lay, the position would be approximated to the canes which have applied the rule of res judicata or estoppel. So far as the first Court was concerned, it had to decide the application on the merits whether perfunctorily or after a full investigation. I can quite understand the suggestion that if the Court had realized that it was dealing with the matter under Section 47 and not under Order 21, Rule 58, it would have more fully investigated the matter. But as the application itself was undoubtedly competent and the Court purported to dismiss it on the merits, there is no basis here for assuming that the other side could have contended or did contend that the application did not lie or that the Court could have decided that the remedy of the petitioner was only by a separate suit. The most that could be said in favour of the petitioner is that having decided the petition against her, the learned Subordinate Judge gratuitously offered advice to her as to he further course she was to adopt. The advice was unfortunately wrong, but that will not make it res judicata or create any estoppel as against the other patty. The case is more analogous to the circumstances dealt with by the Privy Council in Watson v Collector of Rajshahya (1869) 13 M.I.A. 160 where a learned Judge had thought and made a remark that another suit would lie when under the law it would not. Mr. Satyauarayana Rao relies upon the decision of the Allahabad High Court in Mathura Das v. Ramraj Singh 1925 All. 240.
5. There is no doubt one observation there that is of some help to his contention, viz. where the learned Judges rely on the fact that the Court purported to deal with the petition under Order 21, Rule 58; but they also refer to the fact that the claim there was made on foot of au alienation effected by the judgment-debtor prior to the attachment and that therefore the case would not fall under Section 47, Civil P.C., at all, because he would not be a 'representative' of the judgment-debtor. I am therefore unable to treat this decision as an authority in favour of the appellant's contention. Mr. Satyanarayana Rao next argued that even on the assumption that the plaintiff's proper course was to apply under Section 47, Civil P.C., the Court has got the power to treat this suit itself as an application under Section 47 and there is no difficulty in the present case on the score of limitation. But there may be some difficulty with reference to the question of jurisdiction because the application must be made to the Sub-Com b and not to the District Munsif's Court where this suit has been filed.
6. I am however unable to accede to the contention that the present suit may be treated as an application under Section 47, Civil P.C., on broader grounds. If there had been no prior application by the plaintiff and a decision thereof on the merits, it would no doubt be open to the petitioner to make an application in terms of the present suit; but an application having been made in E.A. No. 252 of 1930 a second application would not lie unless I can go further and hold that that application was dismissed merely on the ground of late presentation on the assumption that Order 21, Rule 58, Civil P.C., applied to the case; if it is a decision on the merits, the petitioner's only remedy was to have appealed against that order and not to file a second petition. Mr. Satyanarayana Rao asks me to treat the order already set out in E.A. No. 252 of 1930 as a mere dismissal on the ground of delay and not as a pronouncement on the merits. It does not seem to me that the terms of the order permit of such a construction. The learned Judge refers to the conduct of the petitioner's husband and to the conduct of the petitioner herself as reasons for holding that the claim is not bona fide or well founded. It is certainly a decision on the merits. For these reasons, I confirm the decisions of the Courts below and dismiss the second appeal with costs.