HAKIMUDDIN ABDUL HUSSAIN Vs. GULAM ALI DAUDBHAI

JUDGEMENT

(1.) THIS appeal under Clause 10 of the Letters Patent of this High Court involves mainly the question whether an attachment before judgment survives even after an execution petition is filed subsequent to the passing a decree in plaintiff's favour and is later dismissed due to the default of the decree-holder. Facts which are material for the consideration of this appeal are as follows : respondent No. 1's father Daudbhai filed a Civil Suit No. 86 of 1949 for recovery of money, against respondent No. 2 Barkatali. In the course of this suit he obtained an order for attachment before judgment against barkatali and in pursuance of the same, attached one house as belonging to Barkataii on 164-1949. To this attachment the present appellant Hakimuddin objected, contending that the house belonged to him and Barkatali had no saleable interest in it. While the objection proceedings were pending, a decree was passed in favour of Daudbhai on 13-5-1950. Subsequent to this the objection case terminated, partly in favour of the objector and partly in favour of Daudbhai, on 16-8-1950. It was held that Barkatali had saleable interest in only half portion of the house. The remaining half portion accordingly was released from attachment. Daudbhai then died. His son Gulamali applied on 6-3-1953 for the execution of the decree in execution Case No. 12 of 1953. The petition was dismissed on 12-51954 on the ground that Gulamali had not obtained succession certificate. A second application No. 20 of 1956 for execution was fited or 24-4-1956. In this application the decree-holder applied for reattachment of the attachable half portion of the house and for its sale, with a view to realise the amount of the decree. Attachment was effected on 15-9-1956 and while further proceedings in execution for its auction-sale were in progress, the present suit was filed on 15-12-1956 for a declaration that even this portion which was held to be attachable as belonging to the judgment-debtor was not liable to attachment and sale.

(2.) THE suit was resisted by the defendant Gulamali inter alia on the grounds that the portion now proceeded against belonged to Barkatali and not the plaintiff-appellant and further that since after the decision in Civil Misc. Case No. 10 of 1949 on 16-8-1950 no declaratory suit had been filed within one year as required by Order 21, Rule 63, G. P. C. , that order had become final between the parties. The present suit being filed more than six years subsequent to that date i. e. on 15-12-1956 is barred by limitation.

(3.) ISSUES bearing on the question regarding the title of the plaintiff-appellant over the disputed half portion of the house, regarding limitation due to the effect of failure on the part of plaintiff Hakimuddin to file a declaratory suit within one year subsequent to the decision dated 16-8-1950 upholding attachability of the disputed portion and res judicata were framed. The issues Nos. 7 and 8 which related to limitation and res judicata were tried as preliminary issues. The Trial court held that the suit was barred by limitation under Article 11 of the Limitation act as it was not filed within one year from the date when the plaintiff's objection was rejected as regards the present half portion of the house. It further held in the alternative that even if Article 120 of the Limitation Act is applied, as the present suit was filed more than six years from the date of the rejection of the plaintiff's claim with respect to the present half portion, the same was barred under that provision. In view of this finding which was sufficient to dispose of the suit no finding on the issue of res judicata was considered necessary.