KALURAM MARWARI Vs. MATILAL

JUDGEMENT

(1.) In my opinion this appeal fails. A certain firm, which I will call the Mamraj firm, is said to have been dissolved in 1928, but, at any rate, in 1930, a suit was brought against it. The writ of summons was served by registered post, the postal package being refused. On 2nd March 1931 there was an ex parte decree for Rs. 4,500. On 6 April 1932, the defendants obtained at Asansol a decree against another firm called Gurmukhrai Ramgopal for a some-what larger sum of Rs. 5,432. On 12 April 1932 the plaintiff obtained, in the present suit, an interim injunction against the Mamraj defendants, restraining them from realizing this decree of Asansol. On 14 April it is said that the interim injunction was served. On 20 April the notice of motion was heard ex parte and the injunction was continued. On the same day, an order for attachment was made on the decree at Asansol, wherein the defendants in this suit were the decree-holders. On 25 April the defendants are said to have assigned to the present appellants all their interest under the decree. It is said that the attachment under the order of 20 April was not completed by notice to the Asansol Court until 26 April.

(2.) On 13 June summons was taken out by the appellants against the plaintiff in the present suit. That summons may be regarded in two ways. It may be regarded as an incompetent application by a third party to set aside the order of attachment which was made against the judgment-debtors or it may be regarded as an application to the Court under Order 21, Rule 58, Civil P. C., in the nature of a claim to the property which had been attached. Mr. Banerjee, for the present appellants, does not seek to support the application as one of the character first mentioned and he disclaims any contention to the effect that he would have a right to apply to set aside the attachment. He says--and we may take it--that his case is really a claim to property, which has been attached ; in other words, the application, which the learned Judge has dismissed, is an application under Rule 58, Order 21. That being so, we have to consider the effect of Rule 63, Order 21. It says: Where 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.

(3.) Now, so far as I know, it has always been considered by this Court that the concluding words of that rule prevent any appeal from being brought from the original side from an order made in a claim case ; but Mr. Banerjee has directed our attention to the circumstances that there is some authority the other way. The first case is the case of Sabhapathi Chetti v. Narayanasami Chetti (1901) 25 Mad 555. But an examination of that case shows that the point upon what was then Section 283, Civil P. C., of 1882, was not laid before the Court at all. The Court dealt with and negatived two arguments --one an argument under Secs.588 and 591 of the Code of 1882 and another an argument to the effect that an order in a claim case was not a judgment within Art. 15, Letters Patent. That appears to me to be no authority. It is said however that in the case of C.V. Venugopal Mudali V/s. C. Venkatasubbiah Chetty (1915) 39 Mad 1196, a Division Bench, thinking that the Madras practice had been for a long time to entertain appeals from orders in claim cases, though recognizing the infirmities of the reasoning in Sabapathi's case (1901) 25 Mad 555, held that an appeal under the Letters Patent was not excluded by Order 21, Rule 63. So far as there was any reasoning in that case, it would seem that the reasoning was this: that Section 283, of the old Code was in the same position as Section 588. The reasoning seems to be that the principle generalia spicialibus non derogant was equally applicable to Section 283. That argument appears to me to be unacceptable.