ARUNACHALAM CHETTY Vs. PERIASAMI SERVAI

JUDGEMENT

(1.) The scope of the claim proceedings sections has recently been considered by Full Benches of this Court in Prasada Naidu V/s. Veerayya (1918) I.L.R. 41 Mad. 849: 35 M.L.J. 231 (F.B.) Venkata Ratnam V/s. Ranganayakamma (1918) I.L.R. 41 Mad. 985: 35 M.L.J. 335, and Ramaswami Chettiar V/s. Mallappa Reddiar (1920) I.L.R. 43 Mad. 760. In all these cases it has been pointed out that the object of these sections is to secure the speedy settlement of questions of title raised by attachments, as explained by the Judicial Committee in Sardhari Lal V/s. Ambika Pershad (1888) I.L.R. 15 Cal. 521 (P.C.), and in the last of these cases attention was drawn to the fact that in claim proceedings the release under R. 60, of the property attached or the disallowance under Rule 61 of the claim are made to depend not on title but on possession at the date of attachment, the question of title being left to be investigated in the suit which the unsuccessful party is bound to bring within the prescribed period on pain of losing all his rights. It is by this suit or the failure to institute it that the speedy settlement of the questions of title is secured and all that the order on the claim petition does beyond raising or confirming the attachment is to decide which party is to sue on pain of losing his rights. Section 246 of the Code of 1859 expressly provided as regards attachments before and after decree that the suit was to be brought within the short period of one year, and this did riot cease to be any the less a cardinal and most essential feature of this procedure when in the supposed interests of uniformity the period of one year was omitted from the Code and transferred to the Limitation Act of 1871. It is not disputed that the period of one year continued to be prescribed by the Limitation Acts of 1871 and 1877 and the suggestion that in the Limitation Act of 1908 the Legislature consciously intended to make an alteration as regards orders on claims as to attachments before decree and to allow the unsuccessful party six years to sue under Art. 120 instead of one year under Art. 11 is prima facie most unlikely seeing that the effect of the alteration is to defeat what has always been the essential feature of this procedure, the speedy settlement of titles. It is also "clear that the occasion of the change made in 1908 in the terms of article 11 was the repeal of the sections of the old Code referred to in the article as it stood in the Act of 1877 and that no argument in favour of an intended alteration in the substance of the article can be based on the fact that the Legislature did not merely substitute for the repealed sections a reference to the corresponding rules of Order 21 of the new Code, as it was a sufficient reason for not adopting that course that under the new Code numbering of the rules as well as the rules themselves are made subject to alteration by each of the High Courts in the exercise of its rule-making power. There is therefore no apparent reason to suppose that the Legislature intended to alter the law so as in the case of the claims arising out of attachments before judgment to give the unsuccessful party six years in which to sue; and, as attachment is the first step in execution and the effect of the provisions as regards attachment before judgment is1 in exceptional cases to allow that step to be taken without waiting for the decree. I was at first disposed to think that even an attachment before judgment might be regarded as an attachment "in execution of a decree" within the meaning of the new article, seeing that it is a step taken purely for purposes of execution and that we should best give effect to the real intention of the Legislature by so holding. On a further consideration of the subject I think that such a construction is inadmissible in view of the fact that Section 246 of the Code of 1859 referred to property "which may have been attached in execution of a decree or under any order for attachment passed before judgment and that Section 86, which has been re-produced in the subsequent Codes and now appears as Order 38, Rule 8 provided that claims to property attached before judgment should be investigated in the same manner as claims to property attached in execution of a decree. As it is well-settled that the Limitation Act and the Code are to be read together, I have reluctantly come to the conclusion that we should not be justified in laying down generally that property attached before judgment is attachad "in execution of a decree" within the meaning of the present Art. 11.

(2.) It then becomes necessary to consider cases in which the claim to property attached before judgment is put in after decree, or even, as in the present case, after sale has been ordered in execution. As already observed, an attachment before Judgment in default of security being given is always a step taken with a view to execution; it has the same effect as an attachment after decree which is the first-order to be obtained in execution; and like such an attachment enures until further orders of the Court. (See Schedule 1 App. F No. 7 and App. E No. 8). Order 21, Rule 57 deals with property "under attachment in execution of a decree, "but throws no light on the present question, as it merely provides for the dismissal for default of an application for execution and for the attachment ceasing on such dismissal. Order 38, Rule 11 is more in point, and provides in effect that, when an attachment before Judgment continues in force after a decree for the plaintiff, it shall not be necessary on an application for execution to apply for a re-attachment. This provision does not in my opinion enable us to say that property attached before Judgment becomes property attached in execution of a decree upon the mere passing of a decree for the plaintiff, either within the meaning of Art. 11 of the Limitation Act or of Order 21, Rule 57 already mentioned, as execution may never be applied for, but merely enables the decree-holder to apply for execution by sale of the attached property without a fresh attachment. Where, however, as in the present case, there is an order in execution for the sale of the attached property, that order appears to me to proceed upon the footing that the property is to be considered as attached in execution by virtue of Rule 11 and I think a claim put in after that order may properly be regarded as a claim to property attached in execution of a decree within the meaning of Art. 11 and would answer the reference accordingly merely adding cases not governed by Art. 11 must be governed by Art. 120, as it has not been seriously argued that Art. 13 is applicable.

(3.) Even so, the result of the changes introduced in the Limitation Act of 1908 is to leave the law on this subject in a very unsatisfactory state. The whole object of the summary claim procedure is frustrated when a period of six years is allowed under Art. 120 for questioning an order on a claim petition, and I think that the matter should be set right by the Legislature at the earliest opportunity. Oldfield, J.