GOLE KRISHNA Vs. KISHANDAS AGARWAL

JUDGEMENT

(1.) THIS is an appeal under Clause 10 of the Letters patent from a decision of sharma, J. , where-by the learned Judge setting aside the decision of the first appellate Court dismissing a suit filed by the respondent Shri Kishandas for the reason that it was barred by time under Article II of the Limitation Act, remitted the matter to the said Court with a direction that it should re-hear the appeal preferred before it by the plaintiff on points besides the one decided by the learned Judge and dispose of it according to law.

(2.) THE material lacts are that in execution proceedings of a decree held by one ramchandra against Nakta, the father of the respondents Nos. 2 to 4, a house along with some land situated in Gwalior, was sold on 21st April, 1954 and purchased by the appellant Gole. This property had been mortgaged by Nakta with the plaintiff-respondent Shri Kishandas. On 24th April, 1954, Shri Kishandas presented an application before the executing Court objecting to the sale and for setting aside the same on the ground that as the property had been mortgaged with him, it could not be attached and sold in execution of decree held by ramchandra. On 18th September, 1954, this application was dismissed by the civil Judge, Second Class, Gwalior, executing the decree held by Ramchandra. The ground of rejection was that an executing Court had no jurisdiction to entertain a claim under Order 21 Rule 58 Civil Procedure Code after the execution sale had taken place. In adopting this course, the learned Civil Judge followed the decision of the Madhya Bharat High Court in Shrichand v. Santosh Kumar, AIR 1953 Madh-B 264, which he was bound to follow. Subsequently, on 24th December, 1957, Shri Kishandas instituted a suit out of which this appeal arises claiming a decree for Rs. 1000/- besides interest and costs against the appellant and the respondents Nos. 2 to 4 a decree for the sale of the mortgaged property for the realisation of that amount. After determining the various issues framed by him in the suit, the learned Civil Judge,. Second class, Gwalior, dismissed the suit taking, the view that it was barred by time under Article II of the Limitation Act inasmuch as it was filed after a period of one year from 18th September, 1954, the date on which the application of the plaintiff objecting to the sale had been rejected. His decision was upheld in appeal by the first Additional District Judge, Gwalior. In the second appeal preferred by the plaintiff, the learned Single Judge held that as the plaintiff's objection to the attachment and sale of the property was not entertained and investigated by the executing Court, the dismissal of that objection was on the ground of want of jurisdiction, and, therefore, Article 11 of the Limitation Act, was not attracted and the plaintiff was entitled to file a suit within the period of limitation provided under "the general law". He did not indicate-the article of the Limitation Act governing the plaintiff's suit.

(3.) THE question that arises for determination in this appeal does not present any difficulty. It is this: Whether when an order is passed by the executing Court on an objection under Order 21, Rule 58, Civil Procedure Code rejecting it on the-ground that it had no jurisdiction to entertain the claim as the sale had taken place, does the order of rejection require the objector to file a suit under Order 21, Rule 63, civil Procedure Code-within the period of one year prescribed by Article II of the Limitation Act. Order 21 Rule 63 says that "where a claim or an objection is preferred, the party against whom an order is made may institute a suit. " Article II also speaks of a suit by a person against whom any of the orders mentioned in that article has been made. It will be seen from the wording of these provisions that the essential requirement of a suit under Rule 63 attracting Article II of the limitation Act is that there must be "against" the person instituting the suit an order with regard to the claim preferred by him or an objection made to the attachment of the property attached in execution of a decree. For an order "against" the claimant it is not necessary that the order must involve an adjudication on the merits of the claim after investigation. When the Court entertains and receives an objection for consideration and disposes of it according to law, it must be regarded as making an order disposing of the objection in favour of one party and necessarily against the other. Thus even an order dismissing the claim for default would be an order against the person preferring the claim. On the other hand, if a person objecting to an attachment does not later on desire an investigation of his claim and the objection is not pursued, then there is no order against him within the meaning of Order 21, Rule 63. So also, when an objection to the attachment of a property is made after it has been sold and the Court dismisses it on the ground that the sale having taken place the attachment ended and it had no jurisdiction to entertain the claim, there is no order under Order 21, rule 58 "against" the party. When the Court does not entertain the objection at all for want of jurisdiction, it cannot be held that the order refusing to entertain the objection is an order of the Court disposing of the objection after admitting it for consideration. The decision in Chetanlal v. Lalji, ILR (1938) Nag 276 : (AIR 1937 Nag 170) fully supports the view that when the Court refuses to entertain an objection under order 21, Rule 58 Civil Procedure Code, there is no order against the claimant within the meaning of Rules 58 and 63 of Order 21 Civil Procedure Code. This view is also fortified even by the decisions in Cannanore Bank Ltd. v. P. A. Madhavi, ILR (1942) Mad 336 : (AIR 1942 Mad 41) (FB) and Jagjivan Dhondiram v. Gopal vinayak, ILR (1955) Bom 491 : (AIR 1955 Bom 397) relied on by the learned counsel for the appellant. In the Madras case, a Full Bench of the Madras High court, while holding that Order 21, Rule 63 applies to all orders which are against the claims preferred under Rule 58, pointed out that 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 music involve an adjudication on the merits after investigation. The Full Bench also expressed the following opinion--"even an order of dismissal for default will fall within the rale; so long as it remains in force it is obviously adverse to the claimant. But if the person objecting to the attachment does not ask for his claim to be investigated and the order on the petition is merely that it be recorded, it cannot be said that this is an order 'against' him. In such a case the application will not fall within Rule 58: See P. R. Ayya Pattar v. Manaklal, 1919 Mad WN 805 : (AIR 1920 Mad 822 ). Again the petition may contain a prayer not contemplated by Rule 58, or it may have been presented after the Court has sold the attached property and therefore the Court has ho longer jurisdiction to entertain it. The dismissal of such a petition can scarcely be regarded as an adverse order: See Abdul Kadir Sahib v. Somasundaram, Chettiar, ILR 45 Mad 827 : (AIR 1923 Mad 76 ). " in the Bombay case ILR (1955) Bom 491 : (AIR 1955 Bom 397), Gajendragadkar and Shah, JJ. , distinguished the decision of the Bombay High Court in Ningauda v. Nabisaheb, ILR (1942) Bom 1536 : (AIR 1942 Bom 263) where Divatia, J. , observed-