TILAT SHAHEEN Vs. OMPRAKASH GUPTA

JUDGEMENT

(1.) A short but interesting question of law arises in this appeal regarding the effect of amendment of O.21 R. 58, CPC by the amending Act No.104 of 1976 with effect from 1-2-1977. The Ist respondent herein, Omprakash Gupta, filed a suit bearing O.S. No. 843 of 1976 against the 2nd respondent herein Shankarlal, in the court of the IVth Addl. Judge, City Civil Court, Hyderabad for recovery of Rs.11,000/- and odd. In that suit, an application, I.A. No.1 of 1976 was filed by the Ist respondent for attachment before judgment of the moveable in the premises No. 2-3 belonging to the appellant herein on the ground that the movables in the said premises belong to the 2nd respondent. Pursuant to the above application, attachment was effected on 3-1-1977. The appellant then filed a claim petition No. I.A. No. 13 of 1977 under O.38, R. 8 CPC for release of the property from attachment on the ground that the movables belonged to her and did not belong to the 2nd respondent. After appropriate enquiry, the court dismissed the claim petition filed by the appellant by its order dt.4-3-77. Thereafter the appellant filed a suit bearing O.S. No. 32 of 1977 seeking to set aside the order passed by the IVth Addl. Judge, City Civil Court, Hyderabad declining to release the property from attachment. Respondents 1 and 2 herein were the defendants in the above said suit bearing O.SA. No. 32 of 1977. A preliminary objection was raised by the respondents-defendants that the suit filed by the appellant under O. 21. R. 63 CPC was not maintainable in view of the Amending Act No. 104 of 1976 of the Civil P.C. which came into force on 1-2-1977. It was urged that, according to the Amending Act, an Appeal is provided against the rejection of the claim petition and the procedure, prior to the amendment of filing a suit under O.21, R. 63 CPC was given up. In that view it was contended that the present suit filed by the appellant under O. 21 R. 63 CPC as it stood prior to the amendment, which came into force on 1-2-1977 was not maintainable and the suit should be dismissed in limine. The trial court considered this objection as a preliminary issue and upheld the contention of the respondents-defendants that the suit was not maintainable. Against the above said judgment of the trial court, an appeal was filed by the appellant herein. The Addl. District Judge, Rangareddy District, upheld the order of the trial court by his judgment dt.21-3-1983 in A.S. No.57 of 1982. The judgment of the first appellate court is challenged in this second appeal.

(2.) Sri M. L. Ganu learned counsel appearing for the appellant, referred to the following crucial dates, which will have a bearing on the determination of the question under consideration in this appeal. 1. Attachment was made in I.A. No. 1821 of 1976 in O.S. No. 843/76 on 3-1-1977 2. Claim petition under O. 21, R. 58 CPC was filed on 17-1-1977 3. Amending Act No. 104 of 1976 came into force on 1-2-1977 4. Claim petition rejected by the court on 4-3-1977 5. O.S. No. 32/77 was filed under O. 21 R. 63 CPC on 28-3-1977. Sri Ganu urged that from the above particulars, it is clear that the attachment in the present case was made on 3-1-1977 and the claim Petition under O.21, R.58 CPC was filed on 17-1-1977. Both these dates were before 1-2-1977 when the Amending Act came into force. Shri Ganu invites attention to S. 97(2)(q) of Amending Act which is in the following terms :

(3.) Sri Ramana Reddy, learned counsel appearing for the Ist respondent refutes the claim of Sri Ganu. According to the learned counsel the suit filed by the appellant in O.S. No. 32 of 1977 was not maintainable, inasmuch as, according to him, the provisions of the Amending Act No. 104 of 1976 are clearly applicable and consequently, the appellant could have filed only an appeal against the order of the trial court rejecting the claim petition and could not have availed that remedy under the old Act of filing a suit under O. 21, R. 63 CPC. The learned counsel relies on the judgment of Jeevan Reddy. J. in B. N. Murthy, v. Co-op Central Bank Ltd. Srikakulam (1978) 2 APLJ 238. Learned counsel pointed out that the decision in the above mentioned case is directly applicable to the present case. Learned counsel contends that the judgment of the. Division Bench of this court in Janikamma v. Vajjula Paradesi AIR 1980 Andh Pra 209 did not purport to support the plea urged by Sri Ganu; on the contrary it supports the judgment of Jeevan Reddy. J. and is, therefore, an authority for the proposition that only the provisions of the Amending Act are applicable and not the old Act. Learned counsel contends that S. 97(2)(q)(i) of the Amending Act refers only to the attachment as such and not to other proceedings originating from the initial act of attachment. If prior to the commencement of the Amending Act, no further proceedings were taken and only an attachment was subsisting, then, the provisions contained in the old Act would become applicable in view of S.97(2)(q) of the Amending Act. Where, however, pursuant to an attachment a claim petition was filed and an order rejecting the claim petition was passed by the court subsequent to the commencement of the Amending Act, it is not saved because other proceedings taken pursuant to the attachment made prior to the commencement of the Amending Act and a decision in the proceedings taken was rendered only after the commencement of the Amending Act on 1-2-1977. The law in existence at the time when the court rendered its decision in all proceedings taken pursuant to an attachment is the law that governs the future rights. In the present case, learned counsel points out, the order rejecting the claim petition was made on 4-3-1977. It was also pointed out that the enquiry into the claim petition itself was made under the Amending Act and not following the summary proceedings under the old Act. Where therefore, the enquiry itself was conducted under the Amending Act, which came into force on 1-2-1977, and the order was passed pursuant to such enquiry the provisions contained in the amending Act are applicable and the right to file an appeal against the order rejecting claim petition subsists. Learned Counsel argues that, in view of the above legal position, it was not open to the appellant to file a suit under O. 21, R. 63 CPC as per the provisions contained in the Act prior to amendment. It is also argued that aforesaid construction of S. 97(2)(q)(i) is inevitable as a consequence of the provisions contained therein. According to the learned Counsel if the expression "attachment" occurring in sub-clause (i) takes within its sweep not only attachment but also the relevant proceedings taken pursuant to the attachment, then subclause (ii) will be rendered meaningless, because it seeks to save any suit instituted before the commencement of the Amending Act under R. 63 of O. 21 to establish right to attached property or under R.103 of O. 21 to establish possession. Sri Ramana Reddy points out that, if attachment includes all proceedings originating from the attachment, there is no reason why legislature should have specifically saved the suits instituted before the commencement of the Amending Act under R. 63 or R. 103 of O. 21, because automatically all the suits, which originate from the attachment will be saved under sub-cl. (i) itself and there is no need to make a specific provision in sub-cl. (ii). Learned Counsel strongly relies on the principles enunciated by Jeevan Reddy J. in B. N. Murthy v. Co-op Central Bank Limited, Srikakulam [(1978) 2 APLJ 238 ] to show that contextually the provisions in the Amending Act are applicable to the present case. The learned Counsel also contends that the judgment of the Division Bench in M. Janikamma v. Vajjula Paradesi (AIR 1980 Andh Pra 209) supports the same view. It is therefore contended that the trial court as well as the first appellate court rightly held that the suit filed by the appellant under O. 21, R. 63 CPC was not maintainable.