Court : Chennai
Reported in : 54Ind.Cas.537
..... property, alleged to belong to the undivided family of which the four defendants were members, and there upon the 2nd defendant applied by a petition under order xxi, rule 58, of the code of civil procedure that the attachment of portion of the property might be raised on the ground that it had been assigned to him upon a partition and was his separate property ..... punchanun bundopadhya v. rabia. bibi 17 c.p 711 upon the words of section 278 of the code of civil procedure of 1882 'and in all other respects, as if he was a party to the suit,' that that and the following sections, which correspond to rules 58 to 63, do not apply to parties to suits.7. no doubt if the claimant be a party ..... ) m.w.n. 662 : 9 m.l.t. 152 : 21 m.l.j. 928 and the provisions of section 47 of the code of civil procedure do rot apply to his suit. the question, therefore, is whether under order xx', rule 63 the order made upon the 2nd defendant's petition in the proceedings in execution precludes him from raising this defence.3. the argument ..... on behalf of the 2nd defendant appears to be that rules 58 to 63, of that order do not apply to parties to suits, who are .....Tag this Judgment!
Court : Kolkata
Reported in : 15Ind.Cas.683
..... rule 93 of order xxi of the code of 1908. the petitioners in execution of a decree against their judgment-debtor, one bejoy krishna mukherjee, attached his house and the adjoining lands. thereupon, one ambica debi, the mother of the judgment-debtor and the opposite party in this rule, preferred a claim under rule 58 of order xxi of the code ..... to accede to this prayer. the application clearly ought not to have been entertained. the objector, as we have already stated, made an application under rule 58 on the 10th december 1909. her claim was dismissed on the 9th april 1910. it is true that there was no investigation on the merits but ..... that was entirely by reason of her own default; she wilfully deprived herself of the opportunity open to her at that stage. rule 63 shows that where a claim of this character has been preferred, the party against whom the order has been made may institute a suit to ..... this position cannot be supported. no doubt, in relation to the question of limitation applicable to a suit of the description mentioned in rule 63, it has been held that article 11 of the second schedule of the limitation act does not apply if the application has been refused ..... but it is not necessary for our present purpose to express any opinion upon this question. it is sufficient to hold that, on the face of rule 63, the order of refusal is plainly final till a, regular suit has been instituted and successfully prosecuted. consequently, the objector cannot now be allowed .....Tag this Judgment!
Court : Kolkata
Reported in : 165Ind.Cas.84
..... 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 codecivil procedure codecivil 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 ..... 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 ..... 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 ..... 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 ..... 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 .....Tag this Judgment!
Court : Mumbai
Reported in : (1931)33BOMLR781
..... proceedings, and is also barred by limitation under article 181 of the first schedule of the indian limitation act.3. order xxi, rule 58, civil procedure codecivil procedure codecivil procedure code, has no application, the appellant being the judgment-debtor. the application falls under section 47, civil procedure codecivil procedure codecivil procedure code, and article 165 of the indian limitation act has no application as the appellant had not been dispossessed, but rather article 181 applies ..... -debtor appeals.2. it is argued for the appellant that the trial court appears to have had order xxi, rule 58, civil procedure codecivil procedure codecivil procedure code, in its mind, whereas the appellant being the judgment-debtor and not a third party the application is governed by section 47, civil procedure codecivil procedure codecivil procedure code. it is contended for the respondent that the application is barred as res judicata by reason of issue no ..... levied on defendants' lands not legal and proper?' the finding was that it was legal. it was undoubtedly open to the appellant to raise the objection under section 60 (c), civil procedure codecivil procedure codecivil procedure code, then, which he raises now. having raised the question of the legality and propriety of the attachment and failed to substantiate it under section 60 (c) or other grounds, we .....Tag this Judgment!
Court : Chennai
Reported in : 70Ind.Cas.648
..... article of the schedule to the imitation act which is relied upon it article 11.2. the effect of that article is that, where an order is made under the civil procedure codecivil procedure codecivil procedure code, 1908, on a claim preferred to, or objection made to the attachment of property in execution of a decree, the limitation is one year from the date of the order. the ..... , and treat that order as a refusal of the application on the ground that there had been laches of delay which brought the matter under, the proviso to order xxi, rule 58 which is in these terms:provided that no such investigation shall be made where the court considers that the claim or objection was designedly or unnecessarily delayed.3. and the ..... . that being so, in my judgment, there is no order on a claim preferred within the meaning of the limitation act and no order within the words of order xxi, rule 63 on a claim or objection preferred against the present plaintiff. rightly or wrongly, in my view, the district munsif simply said 'i will not hear you.' it is argued, however ..... only, that where a decision is given on the ground that the matter has been designedly or unnecessarily delayed, that is a decision and an order against the applicant under rule 63 to which article 11 applies. i think this is quite clear from the judgment of the learned chief justice and seshagiri aiyar, j. the latter says:the language of order .....Tag this Judgment!
Court : Chennai
Reported in : 84Ind.Cas.265
..... incompetent application altogether. the appeal is against that order. the subordinate judge rightly remarks that the application -cannot be treated as an application under order xxi, rule 58, c.p.c, for that rule is applicable only when the objection taken is that the property attached is not liable to attachment. in this case, at the time the subordinate judge attached ..... so we must hold in this case that the sale by the munsif passed title to the appellant.2. then the question is whether the appellant can adopt any procedure under the c.p.c. to bring to the notice of the subordinate judge the fact that the title to the property had already passed to him and stop ..... the sale of it in execution of the subordinate judge's decree. the subordinate judge says that there is no such provision in the code; but we think the matter is one which can be brought within the terms of section 47 of the civ.p.c. the purchaser is certainly a representative of ..... . here we have a case where two courts have attached the same property in execution of money-decrees in each court. this is a case which falls under section 63 of the c.p.c. ordinarily under clause (i) the court which should have realised or received such property and determined any claim thereto or any objection to the ..... made above. the respondent will pay the costs of this appeal to the appellant. the costs in the lower court will be disposed of by that court. the civil revision petition is dismissed but without costs. .....Tag this Judgment!
Court : Chennai
Reported in : 37Ind.Cas.348
..... 's claim petition and was passed in the first suit, that order is final, subject to the result of any suit brought by b under order xxi, rule 63, of the civil procedure codecivil procedure codecivil procedure code, within one year of that order. it is that remedy by suit which b ought to have pursued, and he had no right of appeal or revision ..... provided against an order of this description in order xliii of the code of civil procedure, the suggestion is only that the order is one passed under section 47 of the civil procedure codecivil procedure codecivil procedure code, because petitioners are representatives of the judgment-debtor. this is supported by reference to rule 179 of the madras civil rules of practice, which no doubt has the force of law and ..... made that a refusal by the lower court to exercise jurisdiction under section 115 (b), not a material irregularity or an illegality under section 115 (c) of the civil procedure codecivil procedure codecivil procedure code, is in question. but the lower court's order is based on a consideration of the merits of the case and was an exercise, though possibly a wrong one ..... was dismissed as premature.6. i think that c's objection to b's application in the second suit under rule 179 of the madras civil rules of practice was in substance a petition under order xxi, rule 58, of the civil procedure codecivil procedure codecivil procedure code, advancing a claim to the moneys attached by b and that such a petition must be treated as made in .....Tag this Judgment!
Court : Chennai
Reported in : 56Ind.Cas.616
..... 20 c.l.j. 555 and errikullapa chetty v. official assignee of madras 32 ind. cas. 190 : 39 m.p 903 this principle is implied in the provisions of the civil procedure codecivil procedure codecivil procedure code, section 73, under which persons who have applied for execution of their decrees are entitled merely to share the assets realised, and it is clear that, in the absence of ..... interest in the property, which is in custodia legis, and the effect of attachment is to render any private alienation void as against all claims enforceable under the attachment see civil procedure codecivil procedure codecivil procedure code, section 64, and sankaralinga reddi v. kandasimi tevan 30 m.l 413 : 17 m.l.j. 334 : 2 m.l.t. 365. the attachment does not prevent a transfer ..... order xxi, rule 90) such persons cannot object to the sale of the property of their judgment-debtor by the court.4. the ownership of the property passed to the appellant from the moment that the sale was knocked down to him, and the judgment debtor retained no interest in it which can be attached or sold (see section 65, civil procedure codecivil procedure codecivil procedure code). it ..... becomes vested again in his debtor, but he cannot now sell a merely speculative interest in these proceedings.5. it has been argued that the provisions of order xxi, rules 58 to 63, apply to this case, and the heading of the appellant's application referred to them; but we do not think that they apply, because the ground of an application .....Tag this Judgment!
Court : Chennai
Reported in : 42Ind.Cas.683
..... 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 codecivil procedure codecivil 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 ..... 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 ..... 1. the 1st respondent in this appeal put in a claim under order xxi, rule 58, civil procedure codecivil procedure codecivil 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 .....Tag this Judgment!
Court : Kolkata
Reported in : 50Ind.Cas.525
..... the defect would not be cured without the addition to the name of the defendant the fact that he was being sued on behalf of the idol. order vii, rule 9, sub-rule (2), civil procedure codecivil procedure codecivil procedure code, states that where the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity, the plaint shall contain such statement as will ..... any proceedings as between the plaintiff who was the decree holder and the defendant in his present capacity as judgment-debtor would be barred under the provisions of section 47, civil procedure codecivil procedure codecivil procedure code, and i think both from the allegations in the plaint and from all the circumstances that the plaintiff instituted those proceedings against the defendant as representing this hindu deity. the ..... learned officiating subordinate judge of burdwan, dated the 19th september 1917. the suit was brought by the plaintiff to set aside an order allowing a claim preferred under order xxi, rule 58, code of civil procedure. the plaintiff was a decree-holder who had obtained decree on the 21st november 1911. that decree was upheld on appeal, and, after that, execution proceedings were instituted and .....Tag this Judgment!