KRISHNAPPA CHETTY Vs. ABDUL KHADER SAHEB

JUDGEMENT

(1.) The third defendant is the appellant before us. When the plaintiff attached plaint properties in execution of the decree which he had obtained in O.S. No. 20 of 1897 on the file of the District Court of Salem as the properties of his judgment-debtor (the present 2nd defendant), the present 1st defendant put in a claim as the owner of the properties. His claim was allowed and the properties were released on the 18th December 1902. The present suit was brought on the 21st October 1903 (within the one year allowed by law) by the plaintiff to establish his right to attach the plaint properties as the property of his judgment-debtor, the present 2nd defendant. The 3rd defendant, the appellant before us, purchased the plaint properties from the claimant (namely, the 1st defendant) on the 29th December 1902, that is 11 days after the order on the claim petition in the 1st defendant s favour. He however, never took actual possession of the lands and merely got a rent deed, Exhibit B, on the very same date from the 1st defendant. The plaintiff, who evidently did not know of this sale deed to the 3rd defendant by the 1st defendant brought this suit making defendants Nos. 1 and 2 alone parties to the suit ; and when he brought the suit, the one year s period of limitation (as I said before) had not expired. The 3rd defendant applied to be brought on the record as supplemental defendant and he was made supplemental defendant on the 20th March 1904. On the date when he was so made as supplemental defendant, more than a year had elapsed from the date of the order on the claim petition in the 1st defendant s favour. Both the lower Courts found all the facts in the plaintiff s favour and decreed the plaintiffs suit. Hence this second appeal by the 3rd defendant. There are 16 grounds alleged in the memorandum of second appeal. Except the contention as to limitation which I shall presently consider, the other contentions are clearly unsustainable ; one contention not put forward in the lower Courts was argued before us. That was based on the following facts. One Narasinga Row claimed a charge on the plaint properties on the basis of some transactions between himself and the 1st defendant. That claim he put forward when the properties were attached by the plaintiff. His claim was allowed in December 1902. The 3rd defendant, out of the purchase money due by him to the 1st defendant, paid Rs. 400 to Narasinga Row. The 3rd defendant s contention based on these facts is that he is entitled to stand in the shoes of Narasinga Row and, as the plaintiff has not set aside the claim order in favour of Narasinga Row by a suit against Narasinga Row within one year of the date of that order, the defendant is at least entitled to a charge to the extent of Rs. 400 on the plaint lands. I think that this fresh contention cannot be allowed to be raised in second appeal especially as the order, Exhibit A, in Narasinga Row s favour does not state what was the exact nature of the claim which was put forward by Narasinga Row, that is, whether the claim he put forward was to a charge of Rs. 400 on these plaint properties. Fresh evidence would be required namely a copy of the claim petition filed by Narasinga Row before we could safely find that the order, Exhibit A, gave him a charge to the extent of Rs. 400. Such fresh evidence should not ordinarily be allowed to be adduced in second appeal by a litigant who failed to raise in the lower Courts the contention in support of which the fresh evidence is required. As I said, the only contention which requires serious consideration is the contention as to limitation. This contention may be formulated thus. (a) The plaintiff s cause of action to bring the suit is the order passed in the 1st defendant s favor in December 1902. The cause of action was, no doubt, on that date to be prosecuted against the 1st defendant as he claimed then to be the owner of the property and the claim order was passed in his favour in respect of the property which the plaintiff attached in execution of the plaintiff s decree. (b) When the 3rd defendant afterwards purchased the property, the cause of action became directed and prosecutable against the alienee (the 3rd defendant) and any suit brought by the plaintiff to set aside the order on the claim petition should be directed against the 3rd defendant who had become a necessary party defendant to such a suit. The 1st defendant s interest in contesting the plaintiff s alleged right to attach the properties as the properties of his judgment-debtor ceased with the 1st defendant s alienation of the properties to the 3rd defendant, and hence the 1st defendant was no longer the proper party to be impleaded in the suit which the plaintiff had to bring under Order 21, Rule 63. corresponding to the old Section 283 of the Civil Procedure Code. As the necessary party (the 3rd defendant) was not brought on record till March 1904, that is, till after the expiry of the one year s period, the present suit is barred by limitation as against the 3rd defendant who now represents the right in the lands, the validity of which rights was established as against the plaintiff by the order on the claim petition.

(2.) Mr. T.V. Muthukrishna Aiyar who appeared for the plaintiff respondent, advanced in a very able manner three sets of arguments in reply to the appellant s above contentions. One argument was founded on the consideration that the suit brought under Order 21, Rule 63 is of such a peculiar nature that it can be brought only against the successful claimant in the claim petition, and that the successful claimant s alienees ought not to be made defendants as the cause of action vested in the unsuccessful decree-holder against the successful claimant personally. I am, however, unable to accept this argument. The order on the claim petition is connected with rights in immovable property (the decree-holder claiming a right to attach it and the claimant putting forward a right in himself in the property which entitles him to have it released). Hence the suit is not concerned merely with personal liabilities. Coming next to the second argument of Mr. T.V. Muthukristna Aiyar, if I understood him aright, his contention might be stated thus: Though by the order on the claim petition, the attached property was released in favour of the claimant, it was not a final release. The effect of the release might be nullified if the decree-holder s suit brought within one year after the release order was successful. Hence as regards the validity of alienation between the date of the claim petition order and the date of the suit brought to set aside that order, the attachment must be deemed to be subsisting. If the attachment is in essence subsisting, Section 64 of the Civil Procedure Code, (old Section 276,) enacts that alienations of property under a subsisting attachment shall be void as against all claims enforceable under the attachment. The alienation to the 3rd defendant by the 1st defendant is therefore void. The 3rd defendant is therefore not a necessary party.

(3.) I think that this argument also cannot be accepted, as Section 64 clearly contemplates alienations by the judgment-debtor and not by a successful claimant as pointed out by the appellant s learned vakil, Mr. K.R. Subramanya Sastriar. Mr. Muthukristna Aiyar quoted before us passages from several decisions passed by the High Courts to support the above two contentions, viz., that the suit brought under Section 283 is a sort of personal suit and (2) that the release of the attached property in favor of a claimant is not a final release. I do not think it necessary to refer to the decisions in detail. The second contention is, though correct, irrelevant to this case. As regards the first contention, loose general expressions found in Judgments ought to be read in the light of the facts and circumstances of the particular cases in which the decisions were given and, so reading the passages relied upon, I cannot hold that they support the contention that the order on a claim petition is merely an affair between the parties in their personal capacities unconnected with rights to or over property.