MANICKA MUDALI Vs. VABDUL KARIM SAHIB

JUDGEMENT

(1.) This second appeal arises out of a suit to set aside the order on a claim petition. The plaintiff is the decree-holder in a money suit (O.S. No. 356 of 1919) against one Murugappa Mudali. Murugappa sold the property sought to be attached to the present defendant by Ex. B dated 31 May 1926. Both the Courts have concurrently found that this was a bona fide transfer for valuable consideration and was not a nominal transaction nor one intended to defeat the creditors of the judgment-debtor. The plaintiff attempted to bring this property to sale in execution of his money decree in 1927 and this defendant then filed C.M.P. No. 190 of 1927 on 4 March 1927, just a few days before the date fixed for sale. On 7 March 1927 the executing Court passed the following order: The petition is filed late. Claim will be notified. Subject to that the petition is recorded.

(2.) It is much to be regretted that notwithstanding frequent expressions of disapproval by the High Court of this method of dealing with claim petitions, executing Courts still persist in that manner of disposal. As long as this practice continues, any Court which has got to deal with the matter when a plea of limitation under Art. 11 is raised cannot shut its eyes to the obvious in justice that must result from an unnecessarily strict interpretation of Order 21, Rule 63 of the Code. As has often been pointed out, there is no provision for or legal significance in the direction that the claim is to be notified to intending bidders and what is worse the direction that the petition is recorded is calculated to lull the claimant into the belief that his petition has not really been decided against him. I might have had some, difficulty in making up my mind as to the rights of the parties if immediately after this order the property had been brought to sale and no suit had been filed by the claimant within a year after this order. For some reasons not quite apparent on the present state of the record the execution sale did not take place. There was thus ample time for the claimant to approach the executing Court again and say : "Now that there is plenty of time, investigate my claim." He accordingly filed C.M.P. No. 1043 of 1930 and on that petition the executing Court investigated the merits of the claim and upheld it. This is therefore not a case in which property has been brought to sale on the strength of an order dismissing the claim and I have not got to deal with the rights of an auction-purchaser. The question is whether there is anything in the course of events above stated which compels the Court to bring to sale property which on investigation has been found not to belong to the judgment-debtor.

(3.) The learned District Judge has decreed the suit on the strength of the Full Bench decision in Venkataratnam V/s. Ranganayakamma 1919 Mad. 738. In view of the reasoning of the Full Bench in the case I have to emphasise the fact that in the present suit we are not directly concerned with the scope of Art. 11, Lim. Act. The claimant is not the plaintiff who is seeking to set aside an order on a claim petition and the suit does not relate to a claim order passed more than one year before the date of the suit. The point for determination is whether when the executing Court passed on the first occasion the order above extracted, at a time when the sale was imminent, it precluded itself from dealing with the matter again and investigating the claim though the sale did not take place as originally notified. A suit under Art. 11 will not fall within the language of Section 28, Lim. Act, so that the omission to bring a suit of the kind contemplated by Art. 11 will not operate to extinguish the rights of the claimant or the judgment-debtor. The only consequence of the non institution of a suit within the time allowed by Art. 11 is that under Order 21, Rule 63 the order passed on the claim petition becomes conclusive.