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Najimunnessa Bibi, Wife of Subid Sheik Vs. NacharaddIn Sardar - Court Judgment

LegalCrystal Citation
Subject Civil; Limitation
CourtKolkata
Decided On
Reported inAIR1924Cal744,83Ind.Cas.233
AppellantNajimunnessa Bibi, Wife of Subid Sheik
RespondentNacharaddIn Sardar
Cases ReferredSardari Lal v. Ambika Prasad
Excerpt:
- .....compares it with order 21, rule 58 of the present code, one-finds that the code of 1859 viewed a claim in execution as an objection to the sale of the property on the ground that it was not liable to sale under the decree. the code of 1882 and the present code speak of a 'claim preferred to or objection made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment' and the code of 1908 has by rule 57 of order 21 made this still more pointed because whereas, under the previous code execution cases might be struck off and then reviewed, under the code of 1908 an application for execution is a definite proceeding which must either be prosecuted or dismissed; and if it is dismissed the attachment shall cease. it.....
Judgment:

Rankin, J.

1. This is a title suit for lands by a lady against the judgment-creditors of her husband who caused the lands to be taken in execution as being the husband's property and bought them himself at the execution sale. The defendant's decree was obtained in 1910 in Suit No. 453 of 1909. On 4th November, 1910, he attached the lands and the plain-till filed a claim under Order 21, Rule 58 of the Code. Her claim was dismissed for default on 7th January, 1911. Nevertheless, the defendant as decree-holder took no further steps to bring the property to sale, and the execution proceedings were dismissed very soon afterwards for default whereupon the attachment ceased under Order 21, Rule 57. In 1918, the defendant issued execution against the same lands and purchased them at the auction sale. The Lower Appellate Court has disposed of the case on the footing that the second execution was under the same decree.

2. The present question is whether, on the assumptions, this suit brought in 1918 is barred by Article 11 of the Limitation Act not having been brought within a year of the dismissal of the claim case.

3. For the appellant, it is contended that when the execution proceedings were dismissed and the attachment fell to the ground in 1911, there was no necessity for her to bring a suit under Order 21, Rule 63 against the decree-holder. Reliance is placed on Umesh Chandar Roy v. Raj Bulubh Sen (1882) 8 Cal. 279 decided under the Code of 1859 : and on the following cases decided under the Code of 1882 : Gopal Purushottam v. Bai Divali (1893) 18 Bom. 241, Krishna Prosad Roy v. Bibi Behari Roy (1903) 31 Cal. 228 and Morshia Barayal v. Elahi Bux Khan (1905) 3 C.L.J. 381.

4. Babu Dwarka Nath Chakravarti who appears for the respondent distinguishes those cases - the Bombay case on the ground that no execution sale followed under the decree but merely a private sale - the other cases on the ground that, in all, of them, within one year from the dismissal of the claim case, the decree was satisfied. He points out further that, in Umesh Chander's case (1882) 8 Cal. 279 the sale was ultimately held under a different decree. He contends also that some of the observations in Morshia Barayal v. Elahi Bux Khan (1905) 3 C.L.J. 381 are inconsistent with the interpretation put upon the Code by the Privy Council in Sardhari Lal v. Ambika Pershad (1888) 15 Cal. 521.

5. He contends that Rule 63 of Order 21, when it says that the order made in the claim case 'shall be conclusive' means conclusive as regards the right of that decree-holder to have recourse to that property under that decree; that if the particular execution proceeding is dropped and a. new one commenced under the same decree,, the claimant cannot prefer a fresh claim and litigate the matter over again. He points out that in every case where a claim is allowed the attachment falls; through, yet the decree-holder must bring his suit or else give up finally his right to levy on the property. He does not contend that the order in the claim case is conclusive even between the parties for all purposes; for example, that it. would be conclusive for purposes of execution under another decree. He admits accordingly that when the decree is satisfied, the unsuccessful claimant need not bring a suit; but that, he says, is because there is no further possibility of execution, under that particular decree.

6. Now, on ordinary principles of law and by the express words of Section 60 of the Code, a money-decree may be executed by attachment and sale of the judgment-debtor's property including in the word property 'all other saleable property, movable and immovable, belonging to the judgment-debtor' save for certain special exceptions. By Rule 41 of Order 21, the debtor may be examined not only as to the debts due to him, but as to whether he has any and what other property or means for satisfying the-decree. Methods are provided for attaching every kind of property and the decree-holder has a general right to have recourse to every interest in property with the law recognises as a valid existing interest and is capable of sale. Thus property as applied to land does not mean simply land but the share or interest in land which is attached. Now, such interests will not seldom be matters of great dispute, and much investigation will frequently be necessary in order to establish that the judgment-debtor, in fact and in law, possesses the interest to which the decree-holder desires to have recourse. This, however, in no way, bars or qualifies the right of the decree-holder to assert the title of his judgment-debtor if he shall think fit. One way which, in some circumstances, will be the most practicable to assert a disputed right of a judgment-debtor is to make him insolvent, to have a Receiver or Trustee put in the judgment-debtor's place and with a right to litigate his interest. In India, where 'Insolvency notices' are unknown the only 'act of insolvency' which it is possible to make a debtor commit whether he likes it or not appears to be either imprisonment for debt or sale or attachment for 21 days of his property. In many cases it will be impossible to take this course and, in any event, a decree-holder is not bound to have recourse to this method. If then he wishes to execute, he cannot assert his debtors right unless he takes the first step by attaching property. Attachment is not merely to take property into the custody of the Court, its main point is to crystallise the rights of the parties as at a given point of time. Until attachment, a judgment-creditor cannot litigate in his debtor's place to assert his debtor's rights while the attachment lasts, no new interest can be created to defeat it; and although, in this country, owing partly to the rule as to rateable distribution, attachment does not amount to a specific charge in favour of the decree-holder or by itself gives him, in strictness, a title thereto, it is nevertheless the basis of all the judgment creditor's right to assert his debtor's interest in the particular property in question. This matter is one which can be seen from the Code to be essential as part of the scheme of execution. Thus, if one goes to the corresponding section of the Code of 1859 and compares it with Order 21, Rule 58 of the present Code, one-finds that the Code of 1859 viewed a claim in execution as an objection to the sale of the property on the ground that it was not liable to sale under the decree. The Code of 1882 and the present Code speak of a 'claim preferred to or objection made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment' and the Code of 1908 has by Rule 57 of Order 21 made this still more pointed because whereas, under the previous Code execution cases might be struck off and then reviewed, under the Code of 1908 an application for execution is a definite proceeding which must either be prosecuted or dismissed; and if it is dismissed the attachment shall cease. It is quite plain that, if an attachment comes to an end validly, then upon a second attachment no Court can refuse to recognise an interest validly. created in the meanwhile. It is also plain that if an attachment is wrongly released and the right to attach is established subsequently, according to law either by appeal or otherwise, the attachment will relate back to the time when it was made.

7. Now, Rules 58 and 62 of Order 21 are directed to give a means by which execution proceedings may be made effective and not too closely entangled with disputes between third parties and the debtor. Provision is made for investigation of claims in a limited fashion. The scope of the enquiry being confined, the investigation will not always be at all elaborate and the Privy Council in the case already cited (15 Cal. 526) have pointed out that sometimes that investigation may well be very slight indeed. Rules 60 and 61 provide then for a summary investigation into possession as distinct from a thorough trial of ultimate right. It is impossible; to separate altogether the question of possession and of title. Thus if the judgment-debtor was in possession, he may have been in possession, as agent or trustee for another and this has to be enquired into. See the cases of Mohunt Bhagwan Ramanuj Das v. Kheter Moni Dassi (1897) 1 C.W.N. 617, Hamid Bakhut v. Baktear Chand (1887) 14 Cal. 617, Sheoraj Nandan Sinqh v. Gopal Surain Narain Singh (1891) 18 Cal. 290. To that extent, the title may be part of the enquiry in a claim case, but no ultimate questions of trust are intended to be threshed out.

8. Again, one may take the simplest case. The judgment-debtor being truly and justly, in law and in fact, entitled in full right to a piece of land, a third person under a bona fide but unfounded claim of right may be in possession. In such a ease, the person in possession is to have in order in his favour under Rule 60 or Rule 61. Having tested the matter by the limited test provided by these rules, the execution Court is required to make an order. What then is the order it is required to make? By Rule 60, the Court 'shall make an order releasing the property wholly or to such an extent as it thinks fit, from attachment.' Rule 61 is not quite so Explicit by itself. The Court then is to make this order : 'The Court shall disallow the claim' Beading that Rule with Rule 58 that means that the Court is to disallow or reject the claim preferred to or objection made to the attachment of the property attached on the ground that such property is not liable to such attachment.' Now, that is the order which by Rule 63 is made conclusive subject to a suit. The suit, if brought, is not limited by any special standard of evidence or of law. The claimant may, if necessary, thrash out his title in the fullest and most ultimate sense. But if the title which he claims is not the ultimate full title to the property, then, of course he must be content to assert whatever the title claimed may be So too, the decree-holder may make out his debtor's title exactly as if it were a suit for possession by the judgment-debtor. (See 35 Bom. 79.) In either case, the material date is the date of the attachment. The decree-holder has to show that the attachment was valid but has been wrongfully released. The claimant has to show that the attachment was wrongful, but has been improperly retained. To show either of these things, the real and ultimate right to the property may be put in issue. For this reason, some of the observations of the Court in 3 C.L.J. 381 require to betaken subject to qualification. But it is true that the basis of the suit contemplated by R. 63 is to alter or set aside the order made in the claim case. As the Privy Council puts it in the case of Phul Kumari v. Ghunashyam Misra (1908) 35 Cal. 202 that summary order is 'the cause of action,' not the only element in the cause of action, but the most prominent element in the cause of action. The Code in using the words 'shall be conclusive' of the order made after the limited investigation is thinking not of the subsequent effects of that decision as res judicata, but is thinking of and dealing with a Court that is doing something. The Court has attached and is going to sell. The meaning is that the act of the Court is to be valid unless there is a suit. It means that the attachment held valid in the claim case shall be valid, and the attachment removed shall be as though it never was, so far as the parties are concerned. The rule seems to mean that subject to a suit factum valet, the act of the Court shall not be questioned save in that way. The effect of the decision as to possession in other proceedings in which that question may again arise is not the matter to which the words 'shall be conclusive' are directly addressed. As a decision it would doubtless have effect upon the general principles of law expressed in Bam Kripal v. Rup Kuari (1884) 6 All. 269, Mungal Pershad v. Grija Kanta (1882) 8 Cal. 51, Beni Ram v. Nanhu Lall (1885) 7 All. 102. But if the attachment is removed and later on another attachment is made the question of possession is a question of possession at a different date. If there has been, in fact, no change in the position, it may well be that the second claim case will be governed by the first The position will be much as in the case of a second suit for a subsequent instalment of rent. The first decision may take all the fight out of the second case though the actual issue is not the same. Still a suit would be to impeach the second order by trying out the ultimate question of right. It has to be noticed that a claimant is not bound to proceed under Order 21, Rule 58. He can proceed, by a suit to set aside the sale. If the act of the Court in the first claim case came to nothing, because that attachment is abandoned, it seems unreasonable to hold that the claimant must sue the decree-holder at a time when he may have no intention to assert a right to levy on the property, and that otherwise he cannot sue at all when the decree-holder does want to attack the property. It seems time enough as against A to come to the ultimate trial of a right existing as between B and C (in the last resort a right triable by suit) when it is necessary so to do in order to set aside an attachment or a sale by A. A possibility of an attachment in the future seems to be an insufficient basis for a suit by C against A to declare C's right as against B at a date in the past, to which A's rights can never more relate. This possibility is really not sufficient to distinguish the decision cited' by the present appellant. In Gopal Purshotom v. Bai Divali (1893) 8 Cal. 279, Sir Charles Sargent in no way proceeds upon the fact that decree was satisfied. He observes : - 'We agree with the lower Appellate Court that when the plaintiff withrew his attachment the parties were restored to the status quo ante. The object of the claim which was preferred by the defendant was, as contemplated by Section 278, Code of Civil Procedure, to obtain the removal of the attachment and when that attachment was removed by the judgment-creditor's own act there was no longer an attachment or any other proceeding in execution in which the order could operate to the prejudice of the claimant and, therefore, no necessity for bringing a suit to set aside the order.' That was a case where the decree-holder had actually bought by leave from the Court and by agreement with the judgment-debtor after the rejection of the plaintiff's claim in execution the very property disputed in the claim case. If the decree was satisfied. It was satisfied out of that purchase money. In Krishna Prosad v. Bepin Behari (1903) 31 Cal. 228 this Court followed that decision. The principle is that the object of making a claim is in execution is to remove the attachment that when the attachment is withdrawn that object is gained, and that if there exists no attachment or proceeding in, execution on which the order in the claim case can take effect, one is not bound to bring a suit complaining of such order. It is no answer at all to say that a decree holder's suit under Rule 63 has always to be brought after the attachment is removed. If the decree-holder succeeds, he gets the attachment restored as at the date it was made and that is what he fights for.

9. In these circumstances, it seems to me that this suit is not barred by Article 11of Schedule I to the Limitation Act as being a suit by a person against whom an order has been made to establish the right which he claims to the property comprised in the order. I think, therefore, that the appeal should succeed.

10. The result, therefore, is that the decree of the lower Appellate Court is set aside and the case is sent back to the Court for a re-trial on the merits in accordance with the observations made above. The appellant will be entitled to his costs in this Court and those already incurred in the lower Appellate Court : all the costs to abide the result.

Page, J.

11. The determination of this appeal involves the consideration of the meaning and effect of Order 21, Rule 63 of the Code of Civil Procedure. On the 4th of November, 1910, on the application of the present respondent, two plots of land were attached in execution of a decree which the respondent had obtained against the appellant's husband. The appellant thereupon preferred a claim to the property attached under Order 21, Rule 58, Code of Civil Procedure. The claim was dismissed, for default on the 7th January, 1911. Immediately afterwards, the execution proceedings instituted by the respondent were dismissed for default, and the attachment was released. The property in dispute was subsequently again attached in execution of the same decree and the respondent purchased both the plots at the execution sale, and took symbolical possession of them in August, 1918. On the 23rd November, 1918, the appellant lodged the present suit for confirmation of her possession of both the plots and for an injunction. The question for determination is whether, having regard to the provisions of Order 21, Rule 63, Code of Civil Procedure and Article 11 of the first Schedule to the Indian Limitation Act of 1908, the appellant's trait which was brought more than a year after her claim had been dismissed is now maintainable. Rule 63 of Order 21 provides that '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.' The respondent contends ion the appeal that, if a person elects to take advantage of the procedure laid down in Order 21, Rules 58 to 63 of the Code of Civil Procedure, he must be content to abide by the provisions of the rules which ho has invoked and that, if an order is made rejecting his claim or objection, he must institute a suit within a year from the date of such order, notwithstanding that the execution proceedings in respect of which his claim had been preferred have in the meantime come to an end. In my opinion, that contention is unsound. Whether the decree is satisfied, or set aside, or reversed, or whether the decretal amount is paid into Court under Rule 55, or whether the attachment is voluntarily withdrawn by the decree-holder or whether the order of attachment is discharged, in my opinion, the same result follows, namely, the parties are put back in the same position as they were in before the execution proceedings were lodged. When a claim or objection is preferred under Rules 58 to 63, the applicant seeks to obtain the release of the property from attachment. It may or may not in that behalf be necessary for him to establish a possessory or proprietary title to the property. That depends upon the circumstances of each case. Under Rule 60 the claimant has to satisfy the Court that the property when attached was not in the possession of the judgment-debtor or in possession of some person on his behalf. When the attachment is discharged, or withdrawn, or is deemed to be withdrawn under Rule 55, the object sought by the applicant under Rule 58 is for the time being, at any rate, attained. No doubt, the property may, in some cases, again be attached, but such further attachment must, in my view, be regarded as a new process of execution, and the claimant will be entitled to prefer a fresh claim under the Rule 58 against the further attachment of the property. Now the object sought by the institution of a suit under Rule 63 is, in my opinion, different. It is a suit instituted to establish the right of the claimant to the property in dispute, and not merely to remove the attachment. In the case of Morshia Barayal v. Elahi Bux Khan (1905) 3 C.L.J. 381 the Court construed the words of Rule 63 as 'a suit to establish the right which the plaintiff claims to the property in dispute.' At page 383, Mr. Justice Mitra observes : 'The subject-matter of the suit being the removal of the attachment, the right of which the plaintiff necessarily claims in such a suit is the right to have the attachment removed. The words establish a right which he claims to the property in dispute must, therefore, mean the right to have the attachment removed' and he proceeds to cite with approval the following observations of Mr. Justice Beverly in the case of Kedar Nath Chatterji v. Rakhal Das Chatterji (1888) 15 Cal. 674. 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 these proceedings, being on the one hand the right to have the property attached and sold in execution and on the other to have it released from attachment. The words of this 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.' With great respect to the learned Judges who made these observations, I am unable to assent to the construction which they placed upon the words of Rule 63. In my opinion in a suit instituted under' Rule 63, the object of the suit is to establish the plaintiff's title to the property, and not merely to establish his right to have the attachment released. In my opinion, this construction of Rule 63 is in accordance with the meaning attributed to the rule by the Judicial Committee of the Privy Council in the case of Sardari Lal v. Ambika Prasad (1888) 15 Cal. 521. Lord Hobhouse, in giving the judgment of the Board in the case, observed : 'The order is not conclusive; a suit may be brought to claim the property, notwithstanding the order; but then the law of limitation says that the plaintiff must be prompt in bringing his suit. The policy of the Act evidently is to secure the speedy settlement of questions of title raised at execution sales, and for that reason a year is fixed as the time within which the suit must be brought.' The ratio decidendi of the judgment of the Court in Phul Kumari's case (1908) 35 Cal. 202 would seem to support the construction which I place upon Rule 63. That being so upon what reasonable ground ought a claimant to be compelled de bene esse to institute a title suit under Rule 63 within a year after his claim under Rule 58 has been rejected when the object sought by him in making the application under Rule 58 has been attained by the release of the property from attachment within the time limited by Rule 63. I can see none. In my opinion, in circumstances such as those obtaining in this case, Article 11 of Schedule I of the Limitation Act of 1908 does not apply, and it is not incumbent upon the claimant to institute a suit to establish his title within a year after the date of the order rejecting his claim or objections under Rule 58. The determination of the appeal in this sense is, in my view, in accordance with the principle and in consonance with the decisions of the Calcutta High Court, and the other High Courts, See 8 Cal. 279; 13 Bom. 72; 18 Bom. 241; 31 Cal. 214; 36 Bom. 156. I agree that the appeal should be allowed.


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