KESAVA PILLAI Vs. AHAMMED KUNJU

JUDGEMENT

(1.) THIS second appeal arises out of a suit brought under Order XXI,rule 63 of the Code.

(2.) IN O.S.796 of 1100 of the Munsiff's Court,decree against one Mytheenkunju Kurup,the father of the present defendants 1 to 3.After the decree,Mytheenkunju Kurup died;his legal representatives,the present defendants 1 to 3,were impleaded in execution as addi­tional defendants;and the property now in suit which originally belonged to Mytheenkunju Kurup but which he had gifted in separate portions to defendants 1,2 and 3 under Ext.D3,dated 20th Dhanu 1094 M.E.( 3rd January 1919)was attached on 17th Edavom 1113 M.E.( 30th May 1938 ).By Ext.D6,dated 2nd Mithunam 1118 M.E.( 16th June 1948)the part of the suit property which is the subject matter of this appeal was sold by defendants 2 and 3 to the 4th defendant,and on 21st Mithunam 1121 M.E.( 5th July 1946 ),three years after his purchase and eight years after the attachment ),on the very day on which the property was notified for sale in execution,the 4th defendant and his wife,the 5th defendant,( the latter being interested in that portion of the suit property which is not the subject matter of this appeal)presented a claim under Order XXI,rule 58 of the Code which was enter­tained despite the proviso to sub -rule(1)of that rule,and,what is worse,was allowed on 21st Mithunam 1121 M.E.despite rule 59 which requires the claimant to show that at the date of the attachment he had some interest in,or was possessed of,the property attached(which the claimants in this case obviously could not have had,the purchase on which their claim was based being long after the attachment)and despite rule 61 which requires the court to disallow the claim where(as was undisputedly the case here)the property was in the possession of the judgment -debtor as his own property at the time it was attached.The plaintiffs thereupon brought the present suit under Order XXI,rule 63 of the Code.That suit has been concurrently decreed by the courts below so far as the subject -matter of this appeal is concerned,subject however to a prior charge in favour of the 4th defendant;and defendants 4 and 5 have come up with this second appeal

(3.) IT is however claimed that the decree can be supported on other grounds.The first is that the claim should have been summarily rejected under the proviso to Order XXI,rule 58(1)and that in any case it should have been disallowed under rules 59 and 61.That no doubt would have been a good ground to take in the claim pro­ceedings;it is scarcely a ground that can be taken in a suit under Order XXI,rule 63,the scope of which is far wider than that of an investigation into a claim under rule 58.For,under rule 63,the title of the parties to the property in dispute has to be investigated;and if,in reality,the property is not liable to be proceeded against in execution of the decree,it is little use to say in such a suit that,if the court and the counsel had read their pro­visions of Order XXI,rules 55 to 61 at the time of the claim proceedings,the claim would have been disallowed.