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Rakhal Das Chatterji and anr. Vs. Kedar Nath Chatterji - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal673
AppellantRakhal Das Chatterji and anr.
RespondentKedar Nath Chatterji
Cases ReferredBukshi Bam Pergash Lal v. Sheo Pergash Tewari
Excerpt:
limitation act (xv of 1877) schedule ii, article 11 - civil procedure code (act xiv of 1882), sections 280, 283--judgment-debtor, suit by, to establish title to property the subject-matter of claim in execution proceedings. - .....was the plaintiff a party against whom the order was made in the claim case, and is the present suit a suit to establish the right which he claimed in that case8. no doubt in one sense the plaintiff, who was the judgment-debtor in the execution proceedings in which the claim was preferred, was a party to those proceedings, and the order was so far made against him that it adjudicated the question as to whether he was or was not in possession of the property at that time.9. but if the section be construed strictly, as we think it must be construed, it seems to us that no order was really made against him under section 280, and that the present suit is not governed by article 11 of the limitation act.10. when a claim is preferred to property which has been attached as the property of.....
Judgment:

Beverley, J.

1. The facts out of which this case arises are as follow:

Defendant No. 2, in execution of a decree against the plaintiffs, attached the property now in suit, whereupon defendants Nos. 3 to 5 preferred a claim, and succeeded, on the 10th March 1881, in getting the attachment removed. On the 20th July 1881 defendant No. 3 sold the property to defendant No. 1, who is the appellant before us. In 1882 defendant No. 2 instituted a regular suit for a declaration that the property was liable to attachment. To that suit the appellant was no party. It appears to have been decided on 26th January 1883 in terms of a compromise by which plaintiffs' title to the property was admitted.

2. Defendant No. 2 then proceeded to attach the property afresh, and this time he was met by a claim on the part of the appellant, which was allowed on the 15th August 1883.

3. Defendant No. 2 thereupon brought a second suit to set aside the order in that claim case, and that suit was dismissed on the 17th of February 1885.

4. The plaintiffs then instituted the present suit on the 25th September 1885 to recover possession of the property on the strength of their title. The only question with which we are concerned in the present appeal is whether or not the suit is barred by limitation by reason of its having been instituted more than one year after the 15th August 1883, the date on which the appellant's claim was allowed.

5. Both the lower Courts have held that it is not so barred.

6. By Article 11 of the second schedule to the Limitation Act of 1877, a suit by a person against whom an order is passed under Section 280, 281 or 282 of the Code of Civil Procedure, to establish his right to the property comprised in the order, must be brought within one year from the date of the order. In the present case the order of the 15th August 1883 was an order under Section 280 of the Code. If, therefore, the plaintiff was a person against whom that order was made, the present suit would seem to be barred under the article of the Limitation Act above referred to.

7. Now the right to bring a suit to contest an order under Section 280 is given by Section 283, which runs as follows : 'The party against whom an order under Section 280, 281 or 282, is passed 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.' The question is, was the plaintiff a party against whom the order was made in the claim case, and is the present suit a suit to establish the right which he claimed in that case

8. No doubt in one sense the plaintiff, who was the judgment-debtor in the execution proceedings in which the claim was preferred, was a party to those proceedings, and the order was so far made against him that it adjudicated the question as to whether he was or was not in possession of the property at that time.

9. But if the section be construed strictly, as we think it must be construed, it seems to us that no order was really made against him under Section 280, and that the present suit is not governed by Article 11 of the Limitation Act.

10. When a claim is preferred to property which has been attached as the property of the judgment-debtor, the contest is really between the decree-holder who asserts that the property is liable to attachment, and the claimant who alleges that it is not in the actual or constructive possession of the judgment-debtor, and therefore not liable to attachment. And the order made in such a case is either that the property be released from attachment as not being in the possession of the judgment-debtor (Section 280) or that the claim be disallowed, the property being found liable to attachment (Section 281). In a sense the order in either ease may be said to be against the judgment-debtor; in the one case it declares that the property is not in his possession; in the other it declares that it is liable to attachment and sale. But in neither case does it affect his right or title to the property, and in point of fact it is an order to which he need be no party, as it may be made behind his back.

11. Then, if we turn to Section 283, we see that the suit there referred to is a suit to establish the right which is claimed to the property in suit, that is to say, the right which is claimed in those proceedings, being on the one hand the right to have the property attached and sold in execution and on the other the right to have it released from attachment. The words of the section are not 'the right to the property' meaning the title to the property, but 'the right, which he claims to the property' which, we take it, means 'the right which is claimed in that proceeding in respect of the property'--that is, as we have said, the right to have it sold or the right to have it released from attachment. That this is so is clear, we think, from the fact that the decree-holder has no right or title in the property attached, and could not sue to establish any such right. What he claims and what he may sue to establish is the right to have the property declared to be liable to attachment and sale in execution of his decree.

12. The learned pleader for the appellant has relied upon the case of Netietom Parengaryprom v. Tayanbarry Parameshwaren Nambudry 4 M.H.C. 472, in which a Full Bench of the Madras High Court held, under the similar provisions contained in Section 246 of the Civil Procedure Code of 1859, that the judgment-debtor was a person against whom an order might be made under that section The correctness of that decision, however, has been doubted, and we have not been referred to any reported case in which it has been followed. On the other hand, several cases have been cited to us in which it has been held that the judgment-debtor was not a party against whom the order was made in the claim case, and that he was therefore not bound to bring his suit to establish his title to the proporty within one year from the date of the order--Cheriyarakel v. Vayaka Paramhath Imbichi Ammah 6 M.H.C. 416; Imbichi Koya v. Kakkunnat Upakki 1 M. 391; Nitta Kolita v. Bishnuram Eolita 2 B.L.R. Ap. 49; Mannu Lal v. Harsukh Das 3 A 233; Shivapa v. Dod Nagaya 11 B. 114. In most of these cases the case of Netietom Parengayprom v. Tayanbarry Paramesji waren Nambudry 4 M.H.C. 472 was referred to, but the Court declined to follow it, and held that a judgment-debtor cannot necessarily be regarded as having been a party to the investigation against whom the order was made, but that it must depend upon the facts of each case. In the case of Gheriyarakel v. Vayaka Parmbath Imbichi Ammah 6 M.H.C. 416, Morgan, C.J., and Holloway, J., went so far as to say that but for the Pull Bench decision referred to, they would have had great difficulty in saying that the judgment-debtor was a party to the order at all.

13. There are certain remarks in the case of Bukshi Bam Pergash Lal v. Sheo Pergash Tewari 12 C. 453 which go to support the view we take of the meaning of Section 283. In that case Mr. Justice MITTER said : 'Under this section the decree-holder who fails in a proceeding between himself and a claimant under Section 280 of the Code of Civil Procedure may institute a suit to establish his right to the property which he claimed in the proceeding before the execution Court, viz., the right to attach and sell the property which was claimed by the claimant in satisfaction of his decree. That is, in our opinion, the correct construction of Article 11, which refers only to suits contemplated by Section 283. That being so, the question which calls for decision in this case is, whether the present is a suit which comes within the purview of Section 283. It seems to us that the suit contemplated by Section 283 is a suit which may be brought by the unsuccessful party in a proceeding under Sections 280, 281 or 282 to establish a right to the property in dispute, which right was the subject-matter of litigation in the execution proceedings.'

14. In the present case we are of opinion that the suit is not such a suit as is contemplated by Section 283. It is not a suit to establish any right which was the subject-matter of litigation in the execution proceedings. It is a suit to establish the plaintiff's title to the property in respect of which the claim was preferred, but that title was not the subject of those proceedings, nor was it affected by the order made therein.

15. For these reasons we dismiss this appeal with costs.


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