DALMIA CEMENT BH LTD Vs. KAMALA PILLAI

JUDGEMENT

(1.) An interesting question Of law has arisen for consideration in this appeal.

(2.) The appellant herein filed a suit, 0. S. 6614 of 1973, on the file of the City Civil Court, Madras, for recovery of a sum of Rs. 36,887.97, from the second respondent, who is the defend-ant in the suit. Pending the suit, the plaintiff applied for attachment of the house property said to belong to the second respondent before judgment in 1. A. No. 23042 of 1973. The said house property was in fact attached on 10-12-1973. The first respondent herein, Who is the wife of the second respondent defendant filed -a claim petition in 1. A. 465 of 1974, claiming that the property attached did not belong to the second respondent but it belonged exclusively to her and therefore the attachment should be vacated. During the pendency of the said claim petition, the suit itself came to 'be decreed on 5-2-1974. The claim petition 1. A. No. 465 of 1974, filed by the first respondent was dismissed for default on 3-10-1974, and the attachment effected on 10-12-1973 was made absolute. Subsequently, the appellant filed an execution petition E. P. 943 of 1973 on 7-12-1974 and brought the attached property to sale and a sale notice was actually issued to the second respondent on 9-12-1975.After the receipt of the sale notice by the second respondent, the first respondent herein filed another claim petition E. A. 1568 of 1974 at the execution stage on 3-2-1976 claiming that the property sought to be sold is her exclusive property and does not belong to the second respondent. The said claim petition was resisted by the appellant-decree holder on the ground that the earlier claim petition filed by the first respondent in 1. A. 465 of 1974 having been dismissed for default, she is not entitled to file a second claim petition and that the only remedy open to her is to file a suit under 0. 21, R. 63, C. P. C. against the order dismissing her first claim petition for default. This objection has been rejected by the Court below on the ground that the earlier claim petition was dismissed for default and not on merits and that the present claim petition, being the first petition in execution, is maintainable. The Court below also went into the merits of the claim put forward by the first respondent herein and held that Exts. P.1 to P-3 establish that the property attached and sought to be sold by the decree-holder belongs to the claimant and riot to the judgment debtor, that the latter, had no right, title or interest over, the same and that, therefore, the decree-holder, cannot proceed against this property. In this view, the claim Petition had been allowed by the Court below. The validity of the said order has been challenged in this appeal by the appellant-decree-holder,.

(3.) The learned counsel for the appellant refers to the Full Bench decisions of this Court viz., M. Prasada Naidu v. Virayya, (1918) ILR 41 Mad 849: (AIR 1918 Mad 26) and Cannanore Bank Ltd. v. Madhavi, AIR 1942 Mad 41, and submits that as per the said decisions, the dismissal of the entire claim petition for default will have to be taken as an order passed against the claimant, that the order dismising the claim petition for default though made in the proceedings for attachment before judgment, the provisions of 0. 21, R. 63, C. P. C. will come into play, that as per the said provision, the claimant whose claim petition has been dismissed earlier, should file a suit within one year from the date of the order and that in the absence of instituting any such suit, the order will be taken to have become final and conclusive as between the parties. The learned counsel also refers to the decision in Bhailal Tanti v. Prabhu Sahu, wherein the decision of this Court in AIR 1942 Mad 41 (FU) is followed.