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Abdul Latif Laskar and anr. Vs. Aklu Mia Laskar - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Reported inAIR1935Cal500
AppellantAbdul Latif Laskar and anr.
RespondentAklu Mia Laskar
Cases ReferredJugal Kishor v. Ambica Debi
Excerpt:
- .....exception of the items covered by ex. a and a (4), to which defendants 1 and 9 had asserted their title. on appeal, the learned district judge affirmed the decision of the trial court; but the courts below have differed on a question of law. that question was decided in favour of defendants 1 and 2, appellants in this court, by the court of first instance, and against them by the court of appeal below. the question arose for decision on the order of the court of execution refusing to investigate the claim and objections preferred by defendants 1 and 2, passed on 3rd november 1924, to which reference has been made already. the court of first instance was not prepared to take the aforesaid order as one rejecting a claim under order 21, rule 58, civil p.c. in its opinion the order passed.....
Judgment:

Guha, J.

1. The plaintiff in the suit out of which this appeal has arisen, as the purchaser at a sale held in execution of a decree, prayed for declaration of his title to the property in suit, and for possession of the same. The plaintiff's claim was resisted by defendants 1, 2, 3, 4 and 9. It appears that defendants 1 and 2 objected to the attachment of the property in execution and claimed the property as their own; the claim thus made under Order 21, Rule 58, Civil P.C., and the objection to attachment of property were not investigated for the reason that the Court before which they were made considered that they had been unnecessarily delayed. The order recorded by the Court was to the effect:

The claims have been filed. The land was attached a long time ago by beat of drum and sale proclamation was also issued. It appears to me that the claims have been unnecessarily delayed. No order for investigation of the claims will accordingly be raised.

2. The case of defendants 1 and 2, the appellants in this Court, was similar to their claim in the execution proceedings to which reference has been made above; they denied the title of the plaintiff as purchaser at execution sale and asserted their own title to the property in litigation. The Court of first instance gave its decision partially in favour of the plaintiff; the title of the plaintiff was declared to the property in suit, with the exception of the items covered by Ex. A and A (4), to which defendants 1 and 9 had asserted their title. On appeal, the learned District Judge affirmed the decision of the trial Court; but the Courts below have differed on a question of law. That question was decided in favour of defendants 1 and 2, appellants in this Court, by the Court of first instance, and against them by the Court of appeal below. The question arose for decision on the order of the Court of execution refusing to investigate the claim and objections preferred by defendants 1 and 2, passed on 3rd November 1924, to which reference has been made already. The Court of first instance was not prepared to take the aforesaid order as one rejecting a claim under Order 21, Rule 58, Civil P.C. In its opinion the order passed on the petition of objection to attachment filed by the defendant could not 'silence them,' and could not stand in their way in the matter of bona fides of the purchases by virtue of which they asserted their title and wanted to defeat the title of the plaintiff as a purchaser at an execution sale. It may be mentioned here that although the primary Court held against the defendants on evidence so far as the merits of their claim were concerned, the Judge in the Court of appeal below came to the conclusion on evidence, that he would ordinarily have been inclined to hold that the appellants have succeeded in establishing their case in respect of transfers covered by Exs. A (1) and A (2). According to the Court of appeal however the appellants were not entitled to rely for their defence on the same considerations which were put forward by them, with reference to their claim which were not investigated, for reason stated in the order of the execution Court passed on 3rd November 1924.

3. In support of the appeal to this Court it was argued that the order of 3rd November 1924 was not an order rejecting the claims preferred by the defendants under Order 21, Rule 58, Civil P.C., and the said order could not therefore attract the operation of Arts. 11, Lim. Act. It was urged that the order refusing to investigate the claims could not be treated an order against a party on a claim preferred, within the meaning of Article 11, Lim. Act, and was not also order against a party as contemplated by Order 21, Rule 63, Civil P.C. The contentions thus advanced are covered by the authority of decisions of the different High Courts in the country. Of these, special mention may be made of the decision in Venkataratnam v. Ranganayakamma, 1919 Mad 738, Gobardhan Das v. Makundi Lal, 1923 All 435, Trimbak Tumudu Shet v. Ziparu Chaturdas, 1933 Bom 190 and Nogendra Lal v. Fani Bhusan, 1919 Cal 835. In the decision of a Full Bench of the Madras High Court in Venkataratnam v. Ranganayakamma, 1919 Mad 738, referred to above, the questions arising for consideration in the case before us were exhaustively reviewed, and it held that an order refusing to investigate a claim is one under Order 21, Rule 63, Civil P.C., and was conclusive, if not set aside by a suit within the period of time prescribed by Article 11, Lim. Act. So far as this Court is concerned, it was definitely laid down in Nogendra Lal v. Fani Bhusan, 1919 Cal 835 mentioned above, in consonance with the observations of Mookerji, J., in Jugal Kishor v. Ambica Debi (1912) 151 C 683, that there was a weighty authority in support of the view that where an application had been dismissed with or without investigation, a regular suit, if instituted, must be commenced within one year from the date of such order. On a careful consideration of the question raised before us, we see no reason to differ from the decisions to which reference has been made, and we give effect to the same.

4. It was incumbent on defendants 1 and 2, appellants in this Court, to institute a suit as contemplated by Order 21, Rule 63, Civil P.C., and Article 11, Lim Act. This was not done; and it was not open to the appellants now to defeat the claim of the plaintiff in the suit giving rise to this appeal, by agitating matters which should have been urged by them in a suit as provided by the provisions of the statute to which reference has been made above. It has also to be stated in this connection that there can be no question that where there is an order tantamount to a refusal of a claim made by a party under Order 21, Rule 58, Civil P.C., if that party fails to bring a suit as contemplated by Order 21, Rule 63, he is precluded from asserting his title against the auction-purchaser, whether plaintiff or defendant; and the parties in the position of defendants 1 and 2 in the suit out of which this appeal has arisen, could not be allowed to raise again their claim to the property, even though they might come to occupy the position of the defendants in a suit for possession by the auction-purchasers. In the above view of the case regard being had to the trend of decisions by the High Courts in this country, from which we do not see any reason to differ, the decisions given by the Court of appeal below, on the question of law arising for consideration in this case, must be affirmed. In the result, the appeal is dismissed. There is no order as to costs in this appeal.

Bartley, J.

5. I agree.


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