SAWAI SINGHAI NIRMALCHAND Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is an appeal by the plaintiff whose suit apparently under Order 21, rule 63, Civil Procedure Code, for a declaration that certain house property belonging to him could not be proceeded against by the defendant for the recovery of certain amount of money from one Phoolchand has been dismissed. Briefly stated the relevant facts giving rise to the plaintiff's suit are these. One Phoolchand had obtained a decree for Rs. 24,234 -14 -0 with costs amounting to Rs. 2,462 -1 -0 and future interest at 4 per cent. per annum from the date of his suit till its realization against the defendant. On appeal to this Court the said decree was modified and a decree for Rs. 10,971 -13 -6 inclusive of costs was passed instead. In the meantime, the defendant, who was ordered to deposit the decretal claim as decreed by the first Court, had deposited the same and Phoolchand after furnishing requisite surety had withdrawn the same. Consequent to the reduction of the decretal claim the excess amount received by Phoolchand was sought to be restored to the defendant by proceedings for restitution. In execution of the order for restitution the house property in question was attached and the plaintiff objected to the attachment under Order 21, rule 58, Civil Procedure Code, claiming to be its exclusive owner. The said objection was dismissed on 16 -4 -1957. Thereafter the plaintiff gave a notice under section 80, Civil Procedure Code, to the defendant on 12 -4 -1968 of the proposed suit, and as the civil Courts remained closed for summer vacation commencing from 12 -5 -1958 the instant suit was filed on 23 -6 -1958, the opening day after vacation.

(2.) THE defendant contested the claim of the plaintiff in suit on merits and it was also contended that the suit was barred by limitation. It was urged that as no notice under section 80, Civil Procedure Code, being required for the instant suit, the period of notice could not be excluded and, therefore, the suit having been filed after more than one year of the order dated 16 -4 -1957 in the claim proceedings, the order rejecting the claim of the plaintiff had become final and conclusive. This objection going to the root of the whole suit was tried as a preliminary issue. The lower Court upheld the objection of the defendant and dismissed the suit as barred by limitation. Hence this appeal by the plaintiff challenging the correctness of the dismissal of his suit. The plaintiff -appellant has urged that the lower Court was wrong in holding that no notice under section 80, Civil Procedure Code, was required for filing the instant suit and as such period of notice could not be excluded under Article 15 of the Indian Limitation Act. Thus the short question to be determined in this appeal is whether a notice under section 80, Civil Procedure Code, is necessary for a suit to be filed under Order 21, rule 63, Civil Procedure Code, by a person who had unsuccessfully challenged the attachment of certain property under Order 21, rule 58 of the Code. If the answer is in the affirmative, the suit will have to he held to be within the prescribed period of limitation provided by Article 11 of the Indian Limitation Act and will have to be sent back for its adjudication on merits. However our answer to the question as shown hereafter is in the negative and consequently this appeal has to be dismissed.

(3.) AS against the aforesaid view of this Court, the appellant relies on the contrary view of this Court taken in the unreported case of the Liquidator of Society, Sangakheda v. Ayodhyaprasad 1939 NLJ 215=AIR 1939 Nag. 232, which was followed later on in the case of Vasant v. G.M. Khandekar 1948 NLJ 212=AIR 1949 Nag. 25=ILR 1948 Nag. 216. In the former unfortunately there is no consideration at all as to the nature and scope of the suit under Order 21, rule 63 of the Code which in our opinion has a decisive bearing on the question of requirement of a notice under section 80 of the Code for such a suit. We are, therefore, unable to say anything with respect to the view therein expressed except to say that with all respect we do not feel disposed to accept the same for reasons which we would elaborate hereafter. This view no doubt found favour with this Court in the latter case. But it will be apparent from the facts of that case that there was never any objection under Order 21, rule 58 of the Code and the declaratory suit was not one that was filed under Order 21, rule 63 of the Code. Instead the suit was a simple suit for declaration presumably under section 42 of the Specific Relief Act. That suit was filed, no doubt, after objection to the execution of the decree was disallowed. But the objection there was to the decree itself and not to challenge any attachment of any property in execution of that decree. Besides the suit was filed on the direction of the High Court in appeal preferred by the plaintiff challenging rejection of his objection. So in the circumstances of that case notice under section 80, Civil Procedure Code, was rightly held to be necessary. So, in our opinion, none of these two cases of this Court helps the appellant. On the relevant question as to the scope and nature of a suit under Order 21, rule 63 over which this Court, as indicated and pointed out in the foregoing paragraphs, has expressed a definite view. In the course of arguments it was also urged that since the execution in the instant case was as a result of an order for restitution, Order 21, rule 63 did not apply to the suit and reliance was placed on the law laid down in the case of Khawaja Allawali v. Keshrimal and others 1947 NLJ 197=AIR 1947 Nag. 239=ILR 1947 Nag. 176. No doubt the said case lays down that there is an essential difference between restitution and execution in the sense that while restitution means in law restoring to the party what has been lost to him in execution of the decree reversed and varied or in consequence of that decree, the execution is the enforcement of the direction in the executable decree and to give effect to it. But this essential difference was pointed out in order to conclude that an application to secure an order of restitution is governed by Article 181 and not by Article 182 of the Indian Limitation Act. It did not lay down and obviously it could not lay down that after the order of restitution is secured, the said essential difference persists and those proceedings cannot be termed execution proceedings governed by Order 21 of the Civil Procedure Code throughout the subsequent stages during which the said order is sought to be executed. For, such an order is a decree within the definition of decree as defined in the Civil Procedure Code and as such liable to be challenged in appeal. If that be the position then the procedure given in Order 21 of the Civil Procedure Code governs the proceedings taken for execution of such an order with the result that objection to any attachment of property by a claimant on the ground that it is not liable to be attached and sold in execution of that order would be under Order 21, rule 58 of the Code and any order passed would be subject to the decision in the suit if and when filed under Order 21, rule 63 of the Code. We are thus unable to see how the ruling relied upon by the learned counsel for the appellant helps his cause.