(KOTIKALAPUDI) PAKIRAYYA Vs. (KODIYALA) KAMASASTRI

JUDGEMENT

(1.) The appeal arises out of a suit instituted by the plaintiff under Order 21, Rule 63, Civil P.C. The properties involved in the appeal are half of the items in the plaint, other than items 1, 6, 9, 10 portions of 12 and items 21 and 22: see p. 19 of the judgment. These properties were in the possession of defendant 2's husband as a tenant under the zamindar. They were sold in execution for non-payment of arrears of rent under the Estates Land Act. The plaintiff's case is that at such sale the zamindar purchased the lands and afterwards gave pattas to him, constituting him a tenant under the Act. These lands were attached in execution of a decree obtained by defendant 1 against defendant 2's husband. The attachment was on 2nd September 1921. The plaintiff filed objections to the attachment in 1922. The pattas which were given to him with respect to these properties are Exs. D and D-l dated 3 October 1923 and 6 February 1922. At the date of the attachment he was not able therefore to show that he had a title to these properties. His petition was therefore disallowed, and he has instituted the present suit under Order 21, Rule 63. The learned Judge held in the first instance that the suit was not maintainable by reason of the fact that the plaintiff had no title at the time when the attachment was made. This opinion would entail the dismissal of the suit, but he went into its merits also and held that, if a suit would lie, the plaintiff had established his title to items 18 to 20 of the suit properties, as well as the items covered by the sale certificates, Exs. G, G- 1, G-2, G-5, and G-6 and that the plaintiff had not succeeded in establishing his title to items 3, 4, 14, 16 and portions of items 13 and 15. His claim to item 4 is not pressed in this appeal.

(2.) The learned Counsel for the appellant argues first that a suit is maintainable under Order 21, Rule 63, in this case; and secondly, that the learned Judge should have allowed in his favour the items which he has disallowed, namely, 3, 14 and 16, and portions of items 13 and 15. So we have to decide two points in this appeal. The first point is whether in a suit under Order 21, Rule 63 it is open to the plaintiff to assert the title which he has at the time when the suit was instituted to show that the order of attachment should not have been made. Order 21, Rules 58 to 63, relate to investigation of claims and objections to attachment. Under Rule 59 what the claimant or objector has to prove is that "as the date of the attachment he had some interest in, or was possessed of, the property attached."

(3.) Whether he had any interest at the date of the attachment in the property, is the question which the Court has to decide. If the decision goes against the claimant, he has to establish his title to the property under Rule 63 before the expiry of one year; otherwise the order of attachment prevails against him and becomes conclusive, and he cannot assert his title to the property. It is argued on behalf of the appellant that, though he was not able to establish his title to the property attached at the date of the attachment, still it is open to him to assert such title in his suit under Order 21, Rule 63, Civil P.C., since he has obtained pattas from the zamindar establishing his title to the property; so that, if he is able to establish his title having regard to the evidence that he is able to offer in support of it, the Court may consider whether the attachment was validly made or not. The terms of Order 21, Rule 63 are these: Where a claim or any objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute