ALI Vs. MUHAMMADALI

JUDGEMENT

(1.) THE learned Magistrate, in the first instance, passed an order to release the vehicle to the first respondent, from whom it had been seized. But the order was challenged by the petitioner in Crl. M. C. No. 2175 of 1993 before this court and it was set aside, with a direction to abide by the verdict in the claim petition that was then pending before the Sub Court, Tirur. Eventually, by the impugned order, the petitioner's claim was rejected and that of respondents 1 to 3 upheld. THE vehicle has been ordered to be returned to the first respondent, from whom it was seized.

(2.) HEARD.

(3.) BUT men the petitioner's counsel submitted that the order is only deemed to be a decree and is not a decree as defined in S. 2 (2)C. P. C. , that law is not certain whether an appeal will lie as from a decree or as from an order and decisions on this question are conflicting. No doubt, there are conflicting decisions. BUT in my view there is not much scope for a confusion if the matter is considered in the right perspective. BUT the amendment Act, 104 of 1976, the old R. 58 to 63 of Order XXI have been substituted by R. 58 and 59. The important changes are: "1. Where the Court entertains a claim or objection the court must investigate fully (and not summarily as before) and adjudicate upon all questions including questions of right, title and interest, in the attached property arising between the parties (Sub-rule (1) and (2 ). 2. An order passed after such investigation determining such question, has the force of a decree and the remedy of the party against whom the order is passed is by way of appeal and not by way of a suit (sub r. 3 (d ). An order on a claim petition is subject to a suit under the present rule only if the Court has refused to entertain the claim or objection. (Sub-rule (5) ). 3. Where the property attached is subject to a mortgage, charge or interest in favour of. any person, the Court can continue the attachment". In the objects and reasons to the amendment it was stated that: "rules 58 to 63 deal with claims and objects in execution. At present the adjudication in execution has limited scope and the matter can be further agitated by way of a regular suit. In order to prevent protraction of litigation, it is thought desirable to have all questions (including questions of title) settled finally in execution proceedings itself. This would be in keeping with the tenor of S. 47 wherein it is provided that all questions arising between parties to the suit relating to the execution, discharge and satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. R. 58 to 63 are being substituted accordingly". 6. Under sub-rule (2) of R. 58, "all questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit". It is clear that by the provisions newly introduced what was originally a summary investigation into possession has now been made into a full investigation which would involve adjudication of the claims including right to title and interest over the attached property and the order passed upon such adjudication will be deemed to be a decree. As held by this Court in george Antony v, Kerala State Financial Corporation (1989 (1) KLT 486): "the court is obliged to consider the title with all relevant matters as if it is a suit and considering the proceedings as a suit normally the claimant is to be treated as the plaintiff and the attaching decree holder as the defendant". The words "as if it were a decree passed by him" appearing in S. 14 of Act 2/65 came up for consideration in M. V. Ali v. Kunjannamma Philipose (1975 KLT 527) where it was held: "the object of the fiction which this expression creates is to render the order executable as the decree of a Civil Court and that involves that the fiction could validly be carried to its logical conclusion, and the only inhibition is that a fiction should not be extended beyond its legitimate field. To hold that the fiction embodied in the expression "as if it were a decree passed by him" amounts to making an order of eviction a decree of the Munsiff and therefore of a Civil Court is only to give full play to the fiction and the object of its creation. This construction would attract not only the provisions of the Civil Procedure Code dealing with execution of decrees but also the provisions of Art. 136 which prescribes the period of limitation for the execution of decrees". Though it is by fiction that the order passed on a claim petition is deemed to be a decree, it is so all the same and has the same incidence. There is no reason to curtail the scope and amplitude of the fiction. As held in M. Venugopal v. Divisional Manager, L. I. C. (1994) 2 SCJ 62): "the effect of a deeming clause is well known. Legislature can introduce a statutory fiction and courts have to proceed on the assumption that such state of affairs exists on the relevant date. In this connection, one is often reminded of what was said by Lord Acquit in the case of East End dwellings Co. Ltd. v. Finsbury Borough Council (1952) AC 109 (B), that when one is bidden to treat an imaginary state of affairs as real, he must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, inevitably have flowed from - one must not permit his "imagination to boggle" when it comes to the inevitable corollaries of that state of affairs". In Parvathy Amma Easwari Amma v. Kunjukunjamma Meenakshi amma (1963 KLT 920 FB): it was held: "fictions of law were created to enable the court to do justice and where to indulge a fiction is to cause injustice, its just limit has been found. If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it". In my view, it is only consistent with the object of the provision to hold that the order passed on a claim petition is a decree and appealable as such.