JAGJIVAN DHONDIRAM KIRAD Vs. GOPAL VINAYAK JOSHI

JUDGEMENT

(1.) WHO is entitled to make an application for setting aside the attachment levied in execution proceedings; that is the short question which arises in this second appeal. Its decision would depend upon the construction of the provisions contained in Rules 58 and 59 of Order 21, Civil P. C. This question arises in this way. The property in suit is a land. It originally belonged to three brothers Vishwanath, Vamam and Vinayak. In 1903 a partition took place between the brothers as a result of which Vishwanath separated from the family. Though at this partition the sheres of all the three brothers were determined and divided, it appears that two brothers Vaman and Vinayak continued to remain joint. At this partition the property in suit was kept joint. It is common ground that in this property the family was entitled to a 1/3rd share; so that the three brothers would be entitled to a 1/9th share each. In 1905 Vaman died. Vaman's share devolved upon Vinayak, since the two were living in joint -ness. In the property in suit Vishwanath was entitled to a 1/9th share and Laxmibai Vinayak's widow who inherited the property on Vinayak's death in 1918 was entitled to a 2/9th share. On 4 -2 -1938, Laxmibai purported to sell a 1/3rd share in this property to defendant 6. It is clear that all that she could have conveyed to the purchaser was 2/9th share of the property and not 1/3rd. One Joshi obtained a money decree against Vishwanath in Civil Suit No. 363 of 1933, In execution of this decree he filed darkhast No. 617 of 1937. On 15 -4 -1937, at the instance of the decree -holder 1/3rd share in the properly in suit came tc be attached as belonging to the judgment -debtor Vishwanath. On 23 -3 -1938, the purchaser from Laxmibai, who is defendant 6 in the present suit, applied to set aside the said attachment, on the ground that the judgment -debtor Vishwanath was entitled only to 1/9th share and not 1/3rd share as alleged by the decree -holder. On 28 -8 -1939, the application made by defendant 6 under Order 21, Rule 58, came to be dismissed. Thereafter the property which was attached in execution was put to sale, and the plaintiff became the auction purchaser; and on 5 -9 -1940, a sale certificate was issued in his favour. It is as an auction purchaser of the property in suit that the plaintiff has filed the present suit on 25 -11 -1944 in which he claims possession of his 1/3rd share of the property in suit by partition by metes and bounds. Defendant 6, who is the purchaser from Laxmibai, resisted this claim on the ground that Vishwanath was entitled only to 1/9th share in this property, and so the auction purchaser cannot get any better title than that of Vishwanath. This plea was met by the plaintiff on the ground that an application had been made by defendant 6 challenging the validity of the attachment of 1/3rd share in tile property in darkhast No. 617 of 1937; the said application had been dismissed; and no suit had been tiled within one year from the date of the dismissal of the said application. In consequence the order passed in those proceedings has become conclusive under the provisions of Order 21, Rule 63, Civil P. C. When the plaintiff sought to raise this difficulty in the way of defendant 6, he replied by alleging that it was held in those proceedings that he was not competent to make an application, and the order which was passed on this ground could not attract the provisions of Order 21, Rule 63. That is how the principal question which has arisen in the present suit and therefore in the second appeal is, whether defendant 6 could have applied challenging the validity of the attachment levied against the 1/3rd share in the suit property under Order 21, Rule 58, Incidentally we may also have to consider, whether the order which was passed on the application preferred by defendant 6 under Order 21, Rule 58, attracts the provisions of Order 21, Rule 63.

(2.) IT is common ground that if the provisions of Order 21, Rule 63, apply, then it would not be open to defendant 6 to raise the contention which he has done in the present suit, He however argues that it was not competent to him to make an application against the order of attachment passed by the executing Court in Darkhast No. 617 of 1937; and he also suggests that the order which was passed in those proceedings was not of the character which could attract the provisions of Order 21 Rule 63.

(3.) IN our opinion this argument cannot be accepted. Rule 59 in the context must, we think, by liberally construed, and it would be wholly inappropriate and unreasonable to adopt the strict and literal construction on which Mr. Kotwal relies. If the literal or mechanical construction is adopted, it would lead to the most unreasonable result in the case of property attached if the owner of the property attached dies after attachment, and before he could make an application under Rule 58; in such a case the heir of the deceased owner cannot avail himself of the summary procedure prescribed by Rules. 58 to 63. Mr. Kotwal seems to suggest that in such a case the only remedy available to the heir would be to file a suit. We do not think that that is the intention of the Legislature in enacting the provisions of Rule 59. When Rule 59 refers to the interest in the property or possession of the property attached, it obviously refers to the applicant or his prede -cessor -in -title. Therefore we are not satisfied that defendant 6 was not competent to make an application under Rule 59 on the ground that he happened to purchase the property subsequent to the date of the attachment. On his own case his predecessor -in -title Laxmi -bai was in possession of the said property and had interest in the said property at the date of the attachment; and if she could have applied to set aside the attachment under Rule 58, we do not see why the purchaser of her right, title and interest, could not have made a similar application. There -tore in our opinion the application No. 153 of 1938 made by defendant 6 under Rule 58 was a perfectly competent application.