LAWS(PVC)-1935-4-114

MADDALI MACHAMMA Vs. CHAPARALA KANAKAMMA

Decided On April 10, 1935
MADDALI MACHAMMA Appellant
V/S
CHAPARALA KANAKAMMA Respondents

JUDGEMENT

(1.) The only point for determination in this Second appeal is whether the suit is barred by Section 47, Civil P.C. The plaintiff is the widow of the defendant in O.S. No. 16 of 1915, on the file of the Bundar Sub Court; and as the defendant died before execution was completed, she was added as his L.R. When the creditor attached certain properties as belonging to the deceased husband of the plaintiff, she filed an application (S.A. No. 252 of 1930, claiming that the attached property belonged to her under a sale deed of 1896. This application purported to be filed both under Order 21, Rule 58, and under Section 47, Civil P.C. It is fairly well settled that when a person, who has been impleaded as the L.R. of a defendant or a judgment-debtor claims that certain properties attached as the property of the judgment-debtor are his own, his remedy is by an application under Section 47 and not by an application under Order 21, Rule 58; but to avoid any possible objection, E.A. No. 252 of 1930 was put in under both the provisions.

(2.) There are however important differences in legal consequences between an application under the one provision and an application under the other, in respect of the further remedies open to the applicant. If the application is only under Section 47, the applicant's remedy in the event of an adverse order on that application is to appeal against that order whereas if the application is really one under Order 21, Rule 58, the applicant's remedy will be by a regular suit. The learned Subordinate Judge who dealt with the application did not bestow sufficient thought on this aspect of the matter and passed a brief order in the following terms: The claim is based on a sale deed of 1896; but some years later the judgment debtor, ignoring that deed though executed by himself, mortgaged the property on his own account and dealt with it as his own. Further the attachment now questioned was effected in 1925 a September, 1929, and this petition is put in only this year, i.e. 25 February 1930, though the petitioner is a resident of the same village. In these circumstances I am not prepared to uphold the claim and refer the petitioner to a regular suit. The petition is dismissed.

(3.) It is obvious that the present suit has been filed on the strength of the observation in the concluding portion of the above order. The Courts below are certainly right in holding that in the ordinary course the matter is one to be dealt with under Section 47 and the plaintiff's remedy was to have appealed against the order on E.A. No. 252 of 1930 and not to file a separate suit. On behalf of the appellant, Mr. Satyanarayana Rao contends that whatever might have been the position, if the order had merely resulted in a dismissal of the claim, it is not right that this suit should be dismissed as barred under Section 47 when the learned Judge himself referred the petitioner to a regular suit. Much as I sympathise with the position in which the plaintiff has been placed by that remark of the learned Judge, I am sorry I can find no legal principle on which I can allow that remark to override the provisions of the law. There are no doubt cases where a wrong order as to whether the proper remedy of a party is by a suit or by an application has been held to preclude the other party from afterwards contending to the contrary in a fresh application or suit. But those decisions rest either on the principle of estoppel or on the principle of res judicata.