KARRI SEETARAMAYYA Vs. PAPPU SUBRAMANYAM

JUDGEMENT

(1.) The facts out of which this Civil Revision Petition arises are fully stated by my learned brother. There are two stages in this matter. The first is the claim petition E.A. No. 3433 of 1924 purported to be filed under Order 21, Rule 58, Civil Procedure Code Ex. A, dated 21st November, 1924. The order upon this is Ex. B, dated 16 December, 1924. The second stage is in 1928--the obstruction by the petitioner before us to the decree-holder in delivery proceedings followed by the application of the decree-holder under Order 21, Rule 97. The order on this petition is the order against which this Revision Petition has been filed. In this order the District Munsif held that the obstructor, that is, the tenant on the land, is precluded by the order Ex. B from setting up his tenancy, he therefore directed delivery free of the tenant's claim.

(2.) On the first matter my learned brother has fully considered the decisions and the construction to be placed upon Ex. B and the effect to be given to it. I agree with him in thinking that it is not such an order as to compel the claimant to file a regular suit within one year under Order 21, Rule 63. But apart from this, it seems to me that there is another reason-why Ex. B should not have such an effect. When a claim petition is filed under Order 21, Rule 58, where the claimant sets up some interest adverse to the judgment-debtor so as to entitle him to ask the Court to raise the attachment in respect of the whole of the property or a portion of the interest in the property attached, the Court may refuse to investigate and dismiss the petition on the ground of delay (proviso to Rule 58) or may proceed to investigate. Then the claimant should adduce evidence to show that he had some interest in, or possessed of the property which was attached (Rule 59). If the Court then comes to the conclusion that the property was not in the possession of the judgment-debtor or some trustee for him or a tenant paying rent to him, the Court allows the claim to raise the attachment wholly or partially (Rule 60). But if all that the claimant has established is a mortgage or charge, the attachment may continue subject to the mortgage or charge (Rule 62). But if the Court comes to the conclusion that the property is in the possession of the judgment-debtor or a trustee for him or his tenant, the Court has not got to raise the attachment wholly or partially but proceed to sell the property. There is no claim to be allowed (Rule 61). Reading Rules 60 and 61, we see that where all that the claimant has is merely the interest of a tenant paying rent to the judgment-debtor (whether the tenant is a tenant at will or from year to year or occupancy tenant) such a person's possession is regarded as judgment-debtor's possession and there is no attachment to be released. That is, for the purpose of investigating the objections to attachment and the raising of the attachment wholly or partially, the possession of a tenant under the judgment-debtor is not regarded as antagonistic to the judgment-debtor however substantial the question which the tenant is an occupancy tenant may be for other purposes; his possession is regarded as that of the judgment-debtor and if this is all the claim that is set up, on the facts of it, it is no objection to the attachment even if fully made out. Therefore the Court should always reject such a petition on the ground that the tenant's claim is not a kind of claim enquiry which is contemplated in a claim petition under Order 21, Rule 58. This is absolutely clear from the conclusion which the Court has to arrive in Rules 60 and 61 and the consequence of such conclusions. I am therefore of opinion that a claim by a tenant of the judgment-debtor is not a claim intended by the legislature to be investigated into by a petition under Order 21, Rule 58. Therefore it is not an order upon which a suit within one year should be filed by the party against whom the order is made.

(3.) On the second point, if the obstruction is caused by a person claiming to be an occupancy tenant and therefore entitled to be in physical possession, the Court should investigate into the matter and if it finds that the claim is a bona fide claim, the Court should dismiss the application of the decree-holder-purchaser in so far as it seeks to get physical delivery. The Court should not dismiss the petition totally; it should order delivery under Order 21, Rule 96, though the purchaser seeks delivery under Order 21, Rule 95. In such a case some form of delivery is necessary to make the proceedings complete as against the judgment-debtor, so that in a regular suit against the obstructor by the purchaser there should be no further objection by the judgment-debtor that the execution proceedings are not complete and that the suit does not lie under Section 47 of the Civil P. C.. (Vide remarks and the procedure indicated in the Full Bench judgment delivered to-day in C. M. A. No. 42 of 1932). If the Court finds against the occupancy tenant, then delivery of physical possession can be ordered (Order 21, Rule 95); the Court ought to investigate the matter. The Court disallowing the objection on the ground that the tenant was precluded by the former order on the claim petition is not one of the courses indicated in the Code and therefore irregular and the irregularity is so material and of such serious consequences that we should interfere in revision. Apart from the order on the claim petition it is possible that the tenant might show his occupancy rights otherwise than by what he adduced in the claim petition. He may show that the village is an estate within the meaning of Section 3(2), (J), of the Estates Land Act. This is another reason why the District Munsif's order is irregular. I concur with the order proposed by my learned brother. Venkatasubba Rao, J.