CHITTOORI VENKATARAJU Vs. CHEKKA SURYANARAYANA RECEIVER TO THE ESTATE OF THE LATE RAO BAHADUR PYDAH VENKATACHALAPATHI GARU

JUDGEMENT

(1.) The appellants in this Civil Miscellaneous Appeal obtained a decree in O.S. No. 58 of 1933 and in execution of that decree attached two items of movable properties. In respect of these properties, the receiver to the estate of Pydah Venkatachalapathi filed two claim petitions, E.A. Nos. 945 and 1152 of 1933. Both these petitions were dismissed with costs on the 5 March, 1934, and the receiver who is the respondent in this appeal paid their costs to the appellants. He, however, filed suits under Order 21, rule 63 of the Civil Procedure Code, O.S. Nos. 150 and 149 of 1934, to have the orders on the claim petitions set aside. These suits were decreed in his favour and appeals by the present appellants failed. The decrees in the suits which were confirmed by the appellate Court set aside the orders on the claim petitions and gave the respondent the declaration of title for which he prayed and the costs of the suits. No mention, however, was made in the decrees of the costs incurred in the claim petitions. The respondent, however, filed the petition, E.P. No. 386 of 1939, out of which this appeal arises for restitution of the costs paid by him to the appellants in obedience to the orders passed on the claim petitions. The learned Subordinate Judge of Coconada allowed this petition. He observed that Section 144 of the Civil Procedure Code, was not confined to cases, where the orders are reversed "only in further stages like appeal, etc., but that it applies to any reversal." He observed also that "the scheme of the provisions under Order 21, rule 58 and rule 63 is that when once a suit under Order 21, rule 63 succeeds, it must be taken automatically that the claim order is vacated. So viewed, the petitioner would be entitled to restitution the moment his suit succeeds".

(2.) It is argued for the appellants that the order of the learned Subordinate Judge is wrong since a suit under Order 21, rule 63 is a proceeding independent of the claim petitions and, if successful, does not in substance set aside the order on the claim petition concerned, although in form the decree may be expressed to be that the order on the claim petition is set aside. Order 21, rule 63 reads: Where a claim or an 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, but, subject to the result of such suit, if any, the order shall be conclusive. For the interpretation he puts on the order, learned Counsel for the appellant relies on a decision of Devadoss, J., sitting alone, reported in Raman Nair V/s. Raman Menon (1924) 20 L.W. 557. The suit with which the second appeal decided by Devadoss, J., was concerned had been brought under Order 21, rule 63 of the Civil Procedure Code and provided that the costs incurred by the plaintiff in the claim proceeding should be paid to him. Devadoss, J., allowed the appeal, holding that a decree in a suit under Order 21, rule 63 could not provide for costs incurred in the claim petition for the reason that the suit contemplated by rule 63 is a suit for a declaration of the claimant's right and the rule does not say that the claim order will be vacated by reason of the judgment in the suit. It is true that Order 21, rule 63 does not provide expressly that the claim order shall be vacated by reason of the judgment in the suit but, with great respect that, in our opinion, is the effect of the order. A suit under Order 21, rule 63 is not brought without reference to the order on the claim petition, and although what the rule states is that "subject to the result of such suit, the order shall be conclusive", it is clear that, conversely, if the suit ends in favour of the party preferring it the order ceases to be conclusive. It is not therefore easy to see what is the difference between an order on a claim petition which ceases to be conclusive by virtue of the judgment in a suit brought under Order 21, rule 63 and an order which is set aside. This view, in our opinion, receives support from two decisions of the Privy Council. In Bibi Phul Kumari V/s. Ghanshyam Misra (1907) 17 M.L.J. 618 : L.R. 35 I.A. 22 : I.L.R. 35 Cal. 202 (P.C.), the question related to the court-fee payable by an unsuccessful claim petitioner on her suit under Order 21, rule 63. Their Lordships held that court-fee was payable under Art. 17 of Schedule II of the Court-Fees Act, which applies to "a plaint or memorandum of appeal" in each of the following suits :--"(1) to alter or set aside a summary decision or order of any of the Civil Courts not established by Letters Patent or of any revenue Court", and Lord Robertson who delivered the judgment of the Board observed that this was an exact description of the effect of the appellant's suit. Moreover, in considering what provision of the Court-Fees Act was applicable, their Lordships referred to the suit under Order 21, rule 63, which was the subject-matter of the appeal as "such actions of appeal", and again later in the judgment observed that "misled by the form of action directed by Section 288" (now Order 21, rule 63) "both parties treated the action as if it were not simply a form of appeal, but as if it were unrelated to any decree forming the cause of action."

(3.) Again, in Nagendranath De V/s. Sureshchndra De (1932) 63 M.L.J. 329 : L.R. 59 I.A. 283 : I.L.R. 60 Cal. 1 (P.C.), where the questions related to the starting point of limitation and the meaning of the word "appeal" "for the purposes of Art. 182 (2) of the Limitation Act", their Lordships, observing that there was no definition of "appeal" in the Civil P. C., stated that they had no doubt that any application by a party to an appellate Court asking it to set aside or revise the decision of a subordinate Court is an appeal within the ordinary acceptation of the term.