KOVVURI BASIVIREDDI (DIED) Vs. NIDUMOORI RAMAYYA

JUDGEMENT

(1.) The question in these Letters Patent Appeals is whether the suits instituted to establish the plaintiff s right to certain moveable property attached by the judgment creditors of a third person and for recovery of its value the property having been sold in execution, within a year of the date of the order dismissing the plaintiff s claim preferred under the provisions of the Civil Procedure Code but more than a year from the date of attachment and of sale is governed by Article 11 of the Limitation Act. The answer depends on whether recovery of the value of the property comes within the scope of a suit to establish the right which the plaintiff claims to the property in dispute within the meaning of Rule 63 of Order XXI, Civil Procedure Code and of Article 11 of the Limitation Act.

(2.) It is contended that the only relief which can be given in such a suit is what the Court which heard the claim could have granted under Rule 60, i.e., to release the property from attachment. In fact it is argued that the suit authorised by Rule 63 is merely in the nature of an appeal.

(3.) In the first place it cannot be said that the words to establish the right in their ordinary grammatical sense necessarily means the obtaining of a mere declaration of the plaintiffs title to the property and exclude all consequential reliefs. If the legislature had intended to limit the relief that might be given in such a suit to a mere declaration of title they would be expected to use that expression with which the Indian Legislature is quite familiar. Then it is difficult to conceive of any good reasons why the owner of the attached property who being unsuccessful in securing recognition of his claim in the execution proceedings is permitted to institute a regular suit to establish his right should not obtain the full reliefs to which he might be entitled. If on the other hand he was to be confined to a mere declaration of his title he would in many cases such as when the goods attached have been sold be driven to a second suit although there might be no contested question for trial. The plaintiff might no doubt apply for an injunction restraining the sale of the property, but in many cases such as where the property attached is of a perishable nature an injunction like that would not be in his interest. Further the Court might well take the view that injunction should not be granted in the circumstances of the case. The wider view of the scope of suits of this class has been taken in a number of cases notably in Kishori Mohan Boy v. Hursook Dass (1886) I.L.R. 12 C. 606 which decision was subsequently confirmed by the Privy Council with-out their Lordships expressing any dissent from the opinion ex- pressed by the learned Judges of the Calcutta Hight Court on this point, in Sadu Bin Raghu v. Ram Bin Gobind (1892) I.L.R. 16 B. 608 where the matter is very fully discussed by Jardine and Telang, JJ. and by this Court in Kunhiamma v. Kunhunni (1892) I.L.R. 16 M. 110. On the other hand no decisions to the contrary directly covering the point have been brdught to our notice. But an attempt was made to support the narrower construction by referring to certain expressions in the Judgments of the Judicial Committee in Phul Kumari v. Ghanshayam Misra (1907) I.L.E. 35 C 202 at 207 where in considering the amount of court-fee payable they say that a suit of thisclass was in the nature of an appeal from the order of the executing court disallowing the claim. They could not however be taken to have meant that in their Lordships view the Court hearing the suit could grant only such relief as the executing Court could have given for ex concessis the former could give a declaration of title binding upon the parties while that is not within the scope of the proceedings in execution.