1. The 1st respondent in this appeal put in a claim under Order XXI, Rule 58, Civil Procedure Code, to certain property which had been attached at the instance of another person. There was another claim filed by the 2nd defendant in the suit and both claims were disposed of on the same date. The 1st respondent's claim was dismissed, it being found that he was not in possession of the property as alleged; the claim of the 2nd defendant on the other hand was allowed and the attachment of the property was removed. Then the decree-holder instituted a suit to establish his right to attach the property belonging to the judgment-debtor and ultimately succeeded in the suit. Thereupon, the 1st respondent put in a fresh claim and, that being dismissed, he instituted this suit.
2. The question is whether the suit is in time. The contention of the appellant is that once the claim of the 1st respondent to the appeal was dismissed, although attachment was removed on the same date at the instance of another person, the 1st respondent was bound to institute a suit within one year of the dismissal of his claim in order to establish his right to the property and failing that the order against him was conclusive. This view of the law was upheld by the District Munsif, but the Subordinate Judge has taken a different view. The question we have got to decide depends upon the proper interpretation of the rules relating to claims and especially of Rule 63 of Order XXI, Civil Procedure Code. Rule 63 says: 'Where a claim or an objection is preferred, a 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.' This seems to imply that the suit is to be instituted with a view to have the attachment removed, that is to say, to have it declared that the property is not liable to attachment at the instance of the decree-holder, inasmuch as it belongs to or is in possession of the claimant. This presupposes the existence of a subsisting attachment which the claimant wishes to get rid of. It seems difficult) to perceive any good reason why a person who claims property, the attachment of which is removed though at the instance of another person, should have to institute a suit to have it declared that the property is his and is not, therefore, liable to attachment. It is really the attachment or rather the order upholding the attachment that is the cause of action in such cases. Once the attachment goes, the order dismissing his claim cannot be said in any way to prejudice the claimant. It ipso facto bars all operations against him. Supposing the decree-holder himself withdraws the attachment after the order has been passed against the claimant, it would be unreasonable to say in such a case that the person claiming the property is still bound to institute a suit to establish his right though there is no one claiming to attach the property against him. The attachment may be removed because the decree is satisfied. Would it not be going much too far to hold that even then the person claiming the properly must sue to get rid of the order setting aside his claim which was passed before the attachment was removed?
3. The question was considered by a Bench of this Court in Ponaka Balarami Reddi v. Haji Mahomed Abdul Aziz 26 Ind. Cas. 532. and the view taken there seems to us to be the correct view. That was also the view taken by the Calcutta High Court in Morshia Barayal v. Elahi Bux Khan 3 C.L.J. 381. On the other hand, the learned Pleader for the appellant relied strongly upon a decision in Bonomali Rai v. Prosunno Narain Chowdhry 12 Ind. Dec. 551. which laid down that when an order removing attachment is set aside afterwards there need be no further attachment and the attachment may be said to have been continued so as to affect the intermediate alienations. But this is a different question from what we have to consider in this appeal All that we are concerned with here is whether the claimant whose claim has been dismissed is bound to get that order set aside even though the attachment has been removed subsequent to the order. Both upon authority and reason we hold that that is not what is intended by Order XXI, Rule 68. The Full Bench decision in Kovouri Basivireddi v. Nidumoori Ramayya 36 Ind. Cas. 445: 31 M. L. J. 394: (1916) 2 M. W. N. 207. has no bearing on the point
4. The appeal is dismissed with costs.