BEHARI LAL Vs. DHARAMVIR AND

JUDGEMENT

(1.) THIS is a second appeal filed by the plaintiff Behari Lal. The material facts are that Jagdish Prasad, defendant no. 4, was owner of two shops situated in Bazar Shyamganj, Bareilly. One Bankey Lal obtained two decrees No. 2 and 3 of 1957 of the Court of Civil Judge, Bareilly and in execution of those decrees, being execution cases no. 46 and 47 of 1958, these two shops were attached and put to auction. The shop which is to the west was auctioned on 14-1-1964 and Behari Lal plaintiff was the auction purchaser. The sale was confirmed in his favour on 29-7-1966; the sale certificate was prepared on 6-8-1966 and possession was delivered on 9-8-1966. It appears that defendants 1 and 2 as well had a decree being No. 11 of 1959 against Jagdish Prasad. That decree had been obtained on the basis of a compromise on 14-8-19 i9. According to Behari Lal, defendants 1 and 3 fully knew of his decree and that compromise had been arrived at collusively. In execution of that decree they got the shop which had been auctioned in favour of the plaintiff attached and they purchased it for a sum of Rs. 3,000/-whereas the plaintiff had purchased it for Rs. 14,500/- and its market value had been fixed by the court at Rs. 10,000/-. The sale in favour of defendant 1 and 2 of that shop was confirmed on 2-6-1969. The defendants no. 2 is tenant of this shop. On these allegation Behari Lal plaintiff prayed for a declaration that the sale of the disputed shop in execution case no. 24 of 1965 made on 11-2-1967 and confirmed on 2-6-1969 was ineffectual against the plaintiff and that the plaintiff was the owner in possession of it. Three separate written statements were filed by the defendants. The defendants no. 1 and 2 in their written statement pleaded, inter alia, that the plaintiff had filed an objection under Order 21, Rule 58 of the Code of Civil Procedure which was dismissed on 8-10-1966. The plaintiff did not file any suit under Order 21, Rule 63 of the Code of Civil Procedure within the statutory period of limitation and as such he ceased to have any right or title in the property in suit and the suit filed by him on 7-10-68 was barred by time. Various issues were framed but issues Nos. 1 and 4 are relevant for the present purpose and they were:- 1. Is the plaintiff owner of the property in suit

(2.) IS the suit barred by time ? The learned trial court on both these issues found in favour of defendants no. 1 and 2 and against the plaintiff. In the result the suit was dismissed with costs. The plaintiff filed an appeal before the District Judge, Bareilly against the aforesaid judgment and decree. That appeal was decided by the Additional District Judge, Bareilly on 3-12-1971. The appeal was dismissed with costs and the judgment and decree made by the trial court were confirmed. Being aggrieved, the plaintiff has filed this second appeal before this Court. The short question which falls for consideration is whether when an objection under Order 21, Rule 58 of the Code of Civil Procedure is dismissed in default or the objector and no suit is filed under Order 21, Rule 65 within the statutory period, a subsequent suit for a declaration regarding the objector's title to the disputed property can be filed Sub-rule (1) of Order 21, Rule 58 reads as under:- "(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit: Provided that no such investigation shall be made where the court considers that the claim or objection was designedly or unnecessarily delayed. Rule 63 reads as under:- "Where the claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.'- According to Sri K. C. Saxena, learned counsel for the plaintiff-appellant the conclusiveness of an order would be only if the court has Investigated the claim or objection. Where a claim or objection has been dismissed in default of the objector and there has been no investigation in the claim or objection, such an order cannot be regarded as conclusive and the bar of Rule 63 will not apply. According to the learned counsel it is only where the court considers that the claim or objection was designedly or unnecessarily delayed that an investigation is not required. It is no doubt correct that under sub-rule (1) the court before which a claim or an objection is made is required to investigate the same, but that does not mean that the conclusiveness attaches only to an order made after such investigation and not to an order made in default of the objector. This question stands concluded by a Full Bench decision of this Court in the case of Mst. Aziz Jahan v Sardar Singh(A. I. R. 1955 All. 241 (F. B.)). In this decision the legislative changes were taken into consideration. In the Code of Civil Procedure of 1959 there were two sections dealing with the objection to attachment of property and investigation of the claim of the objector. In Section 247 there was a proviso that no such investigation shall be made if it appeared that the making of the claim or the objection was designedly or unnecessarily delayed, with a view to obstruct the ends of justice. Section 247 provided that, "In the event of any claim being preferred to, or objection offered against, the sale of lands or any other immovable or movable property which may have been attached in execution of a decree or under any order or attachment passed before judgment, is not liable to be sold in execution of the decree against the defendant, the court shall, subject to the proviso contained in the next succeeding section, proceed to investigate the same with the like powers as if the claim had been originally made a defendant to the suit, and also with such powers as regards the sommoning of the original defendant as are contained in section 220". At the end of this section there was a provision that, 'The order which may be passed by the court under this section shall not be subject to appeal, but the party against whom an order is made shall be at a liberty to bring a suit to establish his claim at any time within one year from the date of the order.' It would thus appear that finality was given to an order made under section 246 and not to an order made under Section 247. In the Act of 1877 these provisions were redrafted in Sections 278 to 283. Section 278 was more or less an analogous provision to Order 21, Rule 58 and Section 283 to Order 21, Rule 63. It would be seen that Order 21, Rule 63 is materially different inasmuch as it does not confine the conclusiveness to an order under Rules 60, 61 or 62 of Order 21, but also says that when an objection is made the party against whom an order is made shall be precluded from setting up any claim to the property unless he had filed a suit to establish the right which he had claimed. It was laid down in this decision:- "There seems to be no reason for excluding an order under Rule 58 summarily dismissing an application from the scope of the words the party against whom an order is made." There is another Full Bench Decision of the Madras High Court as well to which my attention was invited by the learned counsel for the defendants-respondents. It is in the case of Cannore Bank v. Madavi(2), in which the view taken is that Order 21, Rule 63 applies to all orders which are against the claim preferred under Rule 58. The test to see whether an order is under Rule 63 is whether the order is against the claimant or the decree-holder but that does not mean that the order must involve an adjudication on the merits after investigation. In that case the order made under Order 21, Rule 58 was the petition is not pressed. It is dismissed. "It was held that it could not be said that it was not an adverse order and the objector should have filed a suit within a year from the date of the order. The legal position is quite established and it is that the conclusiveness provided under Order 63 attaches to every order made under Rule 58. It includes an order made in default of the objector as well. For the bar laid down under Rule 63 it is necessary that the claim or objection should have been decided on the basis of investigation. In this view of the matter the second appeal is liable to be dismissed. In view of the foregoing discussion the appeal is dismissed with costs.