KUMARA GOUNDAN Vs. THEVARAYA REDDI

JUDGEMENT

(1.) The facts of this case are as follows : In this case one Ramanadhan Chetty had obtained a decree against defendants 1 and 2 in S.C.S. N0.296 of 1915. In execution of that decree (E. P. No. 959 of 1915) the decree-holder attached the suit property. The order to attach was made on nth August, 1915 and the attachment was actually made on 6 September, 1915. The sale was posted to 8 January, 1916. On 6 January, 1916 the present 3 defendant filed a claim petition. On 8 January, 1916, the sale was adjourned to 15 January, 1916, in order to enable the Court to enquire into the claim. But the claim petition was actually disallowed only on 17 January, 1916. The order disallowing the claim petition runs as follows : " In these two cases rival claimants have preferred claims to the property in dispute. The judgment-debtors are minors and two persons purporting to be their guardians have sold in one case the whole property and in another half the property to the two purchasers respectively who are adjacent land owners. The contest is practically between the two claimants and a suit is inevitable. On the grounds that the claims have been preferred too late and the delay is not satisfactorily explained, I disallowed the claim." Seeing that the attachment was made on the 6 September, 1915 and the claim petition was filed on 6 January, 1916 it is difficult to believe that there was such a serious delay in the case as to justify a dismissal without enquiry. It is doubtful that the District Munsif really meant to dismiss the claim petition on the ground of delay in view of his remark " The contest is practically between two rival claimants and a suit is inevitable." He seemed to think that whatever his order was, a regular suit was so certain that to enquire into the merits at that stage would be a waste of time and it was desirable to avoid waste of time at that stage. It is, therefore, difficult to construe the District Munsif's judgment as one dismissing the petition on the ground of delay in spite of the express statement to that effect. If the judgment of the District Munsif cannot be regarded as one disposing of the claim petition on the ground of delay, then the Full Bench decision in Venkataratnam v. Ranganayakamma (1918) ILR 41 M 985 : 35 MLJ 335 (FB) does not apply; and the issue which raises the question of title will have to be gone into. But I do not wish to rest my judgment in this case solely on this ground in view of the ambiguous nature of the District Munsif's order. Mr. Krishnaswami Aiyarhas contended that E. P. No. 959 of 1915 was dismissed and with its dismissal the attachment has ceased to exist under Rule 57 of Order 21, Civil Procedure Code. The E. P. No. 959 of 1915 with all orders thereon up to 1 February has now been exhibited in Second Appeal as Ex. A. E. P. No. 196 of 1916 is exhibited as Ex. B. What happened was that on 17 January, 1916, after the claim petition was disallowed the decree-holder requested the Court to stop the sale. At any rate that is the note made on the execution petition. Mr. Krishnamachari who appears for the respondent now suggests that that was not the result of the unwillingness on the part of the decree-holder to proceed with the sale but it was at the suggestion of the District Munsif that he stated he would file another petition and was willing to withdraw the same. He relies on E. P. No. 196 of 1916 which was filed on the 31 January, 1916, and on which an order was made directing notice for fresh proclamation. This was ordered on 21 February, 1916. In that petition, the petitioner stated that the Court suggested that another petition may be filed on 1 February. No doubt the facts are somewhat suspicious and support Mr. Krishnamachariar's suggestion. But the first petition was not very old at the time and there does not seem to be any particular reason why the District Munsif should be anxious to have it taken out of the file for statistical purposes being only five months old and suggest to the party to file another petition. If the District Munsif did so for such purposes no doubt it is improper. The decree-holder seemed to be willing to oblige the District Munsif. Anyhow he was willing that the fact should appear as if he was not prepared to proceed with the E. P. No. 959 of 1915 on 17 January, 1916. The final order in E. P. No, 959 of 1915 on the 1st February was that the petition was dismissed. Whatever the effect of that order was between the decree-holder and the judgment-debtor, persons who are not parties to the execution proceedings and who do not know all that passed between the Court and the decree-holder are entitled to rely on the fact that the petition was dismissed on account of the unwillingness of the decree-holder to proceed with E. P. No. 959 of 1915. The result of this was that the attachment ceased to exist under Order 21, Rule 57. Though a fresh order on E. P. No. 196 of 1916 was taken without a fresh attachment and is final and binding between the decree- holder and the judgment-debtor and cannot be questioned on account of want of attachment, the present 3 defendant is entitled to rely on the result of the dismissal of the earlier petition and say that the attachment has ceased to exist so far as he is concerned.

(2.) If the attachment has ceased to exist the next question that arises is whether the order on the claim petition, dated 17 January, compels the 3 defendant to set it aside within one year and precludes him from raising his title in the absence of his suit within one year. On this question it is convenient if I make an extract from my judgment in A.S. No. 36 of 1920 referring this identical point to the Full Bench.

(3.) The appellant next contends that the order of 8 August, 1916, has not got to be set aside because the attachment to get rid of which, the claim petition was filed, had ceased to exist.