SAWAI SINGHAI NIRMAL CHAND Vs. UNION OF INDIA

JUDGEMENT

(1.) The short question of law which arises in this appeal is whether a suit filed in pursuance of O. 21 R. 63 of the Code of Civil Procedure attracts the provisions of S 80 of the Code. This point arises in this way. One Phool Chand, the predecessor-in-title of the appellant Sawai Singhai Nirmal Chand, instituted a suit against the respondent the Union of India, in the Court of the Second Additional District Judge, Jabalpur and obtained a decree on 25th April 1951 for Rs. 24,232-14-0 and proportionate costs with interest at 4% per annum. The respondent challenged the said decree by preferring an appeal in the High Court. Pending the appeal, the respondent deposited the decretal amount of Rs. 31,849-9-9. On December 14, 1952 Phool Chand withdrew Rs. 28,032-12-0 out of the said amount after furnishing due security in that behalf. Ultimately, the respondent's appeal was partly allowed on June 26, 1954, and the decretal amount was reduced to Rs. 10, 971-13-6. In the result, the total decretal amount due to the decree-holder Phool Chand came to Rs. 12,691-13-6; and that meant that he had withdrawn Rs. 15,340-14-6 in excess of his legitimate dues.

(2.) On September 4, 1954. the respondent applied for restitution of the said amount and claimed interest thereon. The Second Additional District Judge, Jabalpur, allowed the said application, and in execution of it, the respondent sought for the recovery of the said amount by attachment and sale of certain immovable properties of Phool Chand, mentioned in the application. These properties were accordingly ordered to be attached. But, meanwhile, they had been sold by Phool Chand to the appellant by a registered sale deed executed on January 9, 1953. That is why the appellant objected to the said attachment under O. 21 R. 58 of the Code, but his objection was overruled and his application was dismissed by the Second Additional District Judge on April 16, 1957. It is this order which has led to the present suit under O. 21 R. 63 of the Code.

(3.) Before the appellant filed the present suit on June 23, 1958 in the Court of the First Additional District Judge, Jabalpur, he gave notice to the respondent under S. 80 of the Code on April 12, 1958. In the said suit, he claimed a declaration that the properties in question could not be attached and sold inasmuch as the title in respect of the said properties vested in him by virtue of a valid sale deed executed in his favour by Phool Chand. The appellant also claimed an injunction restraining the respondent from attaching and selling the said properties.