DHAN BIBI Vs. MRINALINI GHOSH

JUDGEMENT

(1.) In 1939 the respondent brought a suit to recover a sum of money from Khalil Ostagar and his son. She applied for attachment before judgment of the property in suit and the property was attached in September 1939. Khalil died in February 1940 and his widow, the present appellant, was substituted as one of his legal representatives. Thereafter, she preferred a claim under Order 38, Rule 8, Civil P.C., to the property, that had been attached but that claim was summarily rejected on 15 July 1910. Subsequently a decree was passed in July 1940 against her as the legal representative of Khalil and against the other defendant. In January 1942 the respondent applied for execution of the decree. She prayed for the sale of the said property which had been attached before judgment.

(2.) As the decree could be executed only against the assets of Khalil in her possession the appellant objected to the sale of the said property on the ground that it was not Khalil's property but was hers. Both the Courts below have come to the conclusion that the property belongs to the appellant. The Court of first instance allowed her objection and released the property from attachment but the lower appellate Court has reversed that order on the ground that she should have brought a suit to set aside the adverse order passed in the claim case within one year of that order. As the finding of fact on the question of title is binding on us the principal question therefore in the appeal before us is whether Art. 11 or Art. 13, Limitation Act, is applicable to a case where a claim to a property attached before judgment is made and rejected before the decree is passed. If either of these articles be not applicable, the residuary article, namely Art. 120, would be, and in that case the un-successful claimant would have six years time from the date of the adverse order passed on her claim to sue for establishing her right to that property. A subsidiary question has been raised before us which involves a question of procedure, which is, whether the question relating to the title to the property can be raised on an objection by the appellant under Section 47, Civil P.C., or whether a suit is necessary. The last mentioned point is not material except for the purpose of court-fees, as her objection under Section 47 has been filed in a Court which would have had jurisdiction to entertain a suit by her for establishment of her title to the property attached. We are, however, of opinion that a suit would be the proper remedy. This Court has all along held that Order 21, Rule 63 of the Code applies when a claim to a property attached before judgment is either allowed or rejected: Raj Kishore Gope V/s. Bhabatosh Chakravarty . That is also the view of other High Courts: Mallikarjuna Ptasada Nayadu V/s. Virayya ( 18) 5 A.I.R. 1918 Mad. 26 Bisheshwar Das V/s. Ambica Prasad ( 15) 2 A.I.R. 1915 All. 275 Mt. Babbal Kumari v. Mulchand Marwari ( 34) 21 A.I.R. 1934 Pat. 580 M.S.M.M. Chettiar Firm V/s. Naung Sein ( 31) 18 A.I.R. 1931 Rang. 279. The appellant therefore should have instituted a suit for establishment of her right to the property, as her claim to the property which had been attached before judgment had been rejected. This aspect of the case distinguishes it from the case in Punchanon Bandopadhyay V/s. Rabia Bibi ( 90) 17 Cal. 711 (F.B.), though she is a legal representative of Khalil Ostagar and is resisting execution on the ground that the property in question did not form part of the assets of the latter. The question of substance, however, is within what time she is to bring the suit. If the time had not run out on the date when she filed her objection under Section 47 of the Code she would be able to raise the question that the property was hers and not the property of her husband, Khalil Ostagar, for, in the circumstances of the case, her application could have been converted by the execution Court to a plaint on payment of proper court fees.

(3.) Art. 13, Limitation Act, would not in our judgment, apply. That article does not apply where the order sought to be set aside by a Suit had been made in a suit. Shankar Sarup v. Mejo Mal ( 01) 23 All. 313 at p. 209; Official Receiver, South Malabar V/s. Veeraraghavan Pattar ( 22) 9 A.I.R. 1922 Mad. 189. The order rejecting the claim of the appellant was made in the suit which the respondent had filed against Khalil Ostagar. The competition, therefore, is between Arts. 11 and 120, Limitation Act. The fact that the appellant's claim had been dismissed without investigation would not make Art. 11 inapplicable, if it is otherwise applicable: 23 C.W.N. Nogendra Lal V/s. Fani Bhusan Das ( 19) 6 A.I.R. 1919 Cal. 835: 45 Cal. 785: 44 I.C. 265. The material portion of that article is as follows: (Suit) "By a person against whom the following order has been made to establish the right which he claims to the property comprised in the order: Order under the Code oil Civil Procedure, 1908, on a claim preferred to, or an objection made to the attachment of, property attached in execution of a decree;.... one year (from) the date of the order.