AVIRA JOSEPH Vs. KORA ABRAHAM

JUDGEMENT

(1.) Two questions raised in this second appeal are these: (1) Whether a claim preferred under O.21 R.58 of the Code of Civil Procedure (for short 'the Code') is subject to any period of limitation. (2) Whether the question that the claim was designedly or unnecessarily delayed can be gone into after reception of evidence. The first court found, on facts, that the claim is not barred by limitation. The lower appellate court did not advert to that question, but declined to consider that the claim is designedly or unnecessarily delayed on the premise that the court is not competent to consider it after recording evidence.

(2.) The appellant is the holder of a money decree against the second respondent who is the judgment debtor. In execution of a decree, the appellant attached the property, which is in dispute in this case, on 1-9-1976. All steps were completed for bringing the property to sale. Almost four years after the attachment i. e., on 7-8-1980 the first respondent (claimant) filed a petition under O.21 R.58 of the Code contending that the attached property was gifted by the judgment debtor to the first respondent as early as 16-3-1972. The decree holder appellant raised different contentions the material among them being that the claim is barred by limitation and that the alleged gift deed is a sham document executed by the judgment debtor in favour of the first respondent who is none other than his nephew, for defeating the creditors. Execution court held that there is no substance in the contention regarding the bar of limitation as "there is no evidence in this case to show that the petitioner (first respondent herein) was aware of the attachment on any day prior to the date alleged by him". Learned Sub Judge who disposed of the appeal dealt with the contention regarding delay in the following lines: "The respondent's counsel has placed reliance on AIR 1980 Patna 136 wherein it is stated that rejection of application under O.21 R.58 on the ground of delay ought to have been done before going into the merits. Once application is decided on merits, courts cannot go back to proviso. In this case evidence was recorded both oral and documentary and hence on the basis of the above quoted ruling the court was not competent to reject the application as per the proviso". The question of bar of limitation, though urged before the learned Sub Judge, as noted by him in the judgment, was not dealt with by him.

(3.) Sri. K. C. John, learned counsel for the first respondent, in the course of his arguments said that to the best of his knowledges one of the law reports contains a decision in which a claim petition was held to be barred by limitation. He invited my attention to the editor's note in the AIR Comment arise by Manohar and Chitaley (at page 104 in Volume-4 of the 10th edition of "The Code of Civil Procedure") which reads thus: "Except the proviso which provides that there shall be no designed or unnecessary delay, there is no limitation for filing the application". But the aforesaid opinion of the editor cannot have the persuasive effect which a judicial pronouncement has. It should be observed that the editor has not 'referred to any decision to support the said note, nor could the learned counsel trace out any case law in support thereof. Hence the question has to be decided by me without the aid of case law on that point. The relevant portions of O.21 R.58(1) of the Code are extracted below: