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Bama Pada Bandopadhyay and anr. Vs. Rama Nath Mandal (Ronamath Mandal in Vokalutnamah) and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in165Ind.Cas.84
AppellantBama Pada Bandopadhyay and anr.
RespondentRama Nath Mandal (Ronamath Mandal in Vokalutnamah) and ors.
Cases ReferredVenkatasubba Rao Kumara Gondan v. Thevaraya Reddi
Excerpt:
civil procedure code (act v of 1908), order xxi, rules 63, 58 - suit under rule 63--scope of enquiry in such suit--attachment withdrawn by satisfaction of decree--order dismissing claim--whether bars claimants getting declaration of their title to property in suit. - .....in the present suit, however, there is no prayer for setting aside the order of dismissal of the claim. plaintiffs are in possession of the property and they simply want declaration of their title to the property. the real point for determination is whether the order dismissing the plaintiffs' claim is bar to the present suit: section 28 of the limitation act does not apply to a suit for setting aside and order rejecting a claim. plaintiffs' right to the property therefore is not extinguished by the plaintiffs' failure to get the said order set aside within one year from the date of the order by a regular suit. what then is the real effect of this order upon the plaintiffs' title to the property in question? it is laid down in order xxi, rule 63, that the successful party in the claim.....
Judgment:

Nasim Ali, J.

1. This appeal arises out of a suit for a declaration of plaintiff's title to certain lands. The plaintiffs' case shortly stated is as follows:

2. One Tincori Mandal acquired maurashi mokarari right in the disputed land on the basis of a potta, dated July 18, 1917. After his death his sons that is, the pro forma defendants, sold the disputed land to the plaintiffs by a registered kobala on July 7, 1921. The defendant, No. 1 in execution of a decree against the pro forma defendants attached this property. The plaintiff No. 1 thereupon preferred a claim. This claim was dismissed for default. Thereafter the plaintiffs paid the decretal amount through the judgment-debtors. The defendant No. 1 subsequently obtained another decree against the pro forma defendants. In collusion with the judgment-debtors he purchased the disputed property in execution of the said decree in the benami of his daughter-in-law the defendant No. 2, and subsequently took symbolical possession. The defendant No. 1 or the defendant No. 2 has not acquired any title to the disputed land on the basis of the auction purchase and the plaintiffs are entitled to get a declaration from the Court about their title to the disputed property on the basis of their purchase from the pro forma defendants on July 7, 1921. The defence of the defendants so far as it is material for the purposes of the present appeal is that the plaintiffs' suit is barred by limitation under Article 11 of the Indian Limitation Act. The trial Court dismissed the suit. On appeal the learned Judge has set aside the deoree of the trial Court and has decreed the plaintiffs' suit. Hence the present appeal by the defendants Nos. 1 and 2.

3. The only substantial point urged by the learned Advocate for the appellants is that in view of the facts admitted and found, the learned Judge should have held that the plaintiffs' suit is in substance a suit to set aside the order dismissing the claim and is, therefore, barred by Article 11 of the Indian Limitation Act. It appears that after the dismissal of the claim case the properly was sold by the executing Court. It further appears that there was an application for setting aside the sale under Order XXI, Rule 90, Civil Procedure Code. The said application was dismissed on September 7, 1925. There was an appeal by the pro forma defendants against the order refusing to set aside the sale. Ultimately the sale was set aside by consent on February 10, 1926, and the decree under execution was satisfied on payment of Rs. 265. Plaintiffs, however, did not bring any suit under Order XXI, Rule 63, for setting aside the order dismissing the claim within the time prescribed by law. The contention of the learned Advocate for the appellant is that the present suit being virtually a suit for setting aside that order it is barred by Article 11 of the Limitation Act. In the present suit, however, there is no prayer for setting aside the order of dismissal of the claim. Plaintiffs are in possession of the property and they simply want declaration of their title to the property. The real point for determination is whether the order dismissing the plaintiffs' claim is bar to the present suit: Section 28 of the Limitation Act does not apply to a suit for setting aside and order rejecting a claim. Plaintiffs' right to the property therefore is not extinguished by the plaintiffs' failure to get the said order set aside within one year from the date of the order by a regular suit. What then is the real effect of this order upon the plaintiffs' title to the property in question? It is laid down in Order XXI, Rule 63, that the successful party in the claim case may institute a suit to establish the right claimed in the claim proceedings under Rule 58 and subject to the result of such suit the order of the executing Court on the petition for claim is conclusive. As the conclusiveness of the order is subject to the result of the suit, the effect of such a suit is to keep alive the execution proceedings till the decision of the suit. The suit is a suit to establish the right claimed in the enquiry, i.e., the liability or non-liability of the property attached to satisfy the decree under execution though the scope of the enquiry in the suit is much wider than the scope of the enquiry in the claim case. If the execution proceedings including the attachment however come to an end by reason of the satisfaction of the decree within one year from the date of the order in the claim case, it is difficult to see why the party against whom the order is made should institute a suit under Order XXI, Rule 63, to set aside that order as the order becomes useless and inoperative by reason of the fact that the attachment which is the foundation of the claim petition and therefore of the order made therein is gone. Rule 58 pre-supposes an attachment and the ground of the application for claim is that the property is not liable to such attachment. The conclusiveness of the order in the claim case therefore is conditional on the continuance of the execution proceedings and the attachment issuing there from. Again the object of prescribing a shorter period of limitation for a suit under Rule 63 is to have speedy determination of disputes relating to title of the properties attached in execution, so that the title to the properties to be sold in execution may not be left uncertain for a considerable time. But if the execution proceedings came to an end by reason of the satisfaction of the decree and there is no question of any sale in pursuance of an attachment the necessity for such a suit disappear. It is, however, contended by the learned Advocate for the appellants that in the present case the decree was satisfied after the period for setting aside the order in the claim case by a suit under Rule 63 had expired and consequently the order which had already become conclusive could not be rendered useless by subsequent termination of the execution proceedings due to the satisfaction of the decree. The following observations of Ramesam, J., in the case of Venkatasubba Rao Kumara Gondan v. Thevaraya Reddi 48 M.L.J. 616 at p 622 : 87 Ind. Cas. 635; (1925) M.W.N. 406; A.I.R. 1925 Mad. 1113, are pertinent in this connection:

If the operations of an order on a claim petition is to be regarded as conditional on the continuance of the attachment it is difficult to see why the cessation of attachment within one year should destroy the operations and cessation of it beyond one year should have just the opposite effect merely because a suit to set aside could not be brought more than one year after the date of the order. It seems tos me to be a novel legal conception.

4. The order which is intended by Rule 63 to be conclusive is the order contemplated by Rules 60, 61 and 62 passed on a petition made under Rule 58. The scope of an enquiry in such a claim or in the subsequent suit under Rule 63 is, therefore, confined to the question of the liability or non-liability of the property to be sold in pursuance of the attachment which gives rise to that claim, or suit. If the attachment goes, the order in the claim case goes along with it. I therefore hold that in view of the withdrawal of the attachment by reason of the subsequent satisfaction of the decree, the order dismissing the claim became useless and inoperative. The plaintiffs, are, therefore, entitled to ignore that order altogether, and the order cannot be a bar to the plaintiffs getting a declaration of their title to the properly in the present suit. The decision of the learned Judge is, therefore, right. The appeal is accordingly dismissed with costs.

5. Henderson, J.--I agree.


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