BENI MAHTO Vs. CHATURGUN SAO

JUDGEMENT

(1.) The petitioners brought a suit for money on 11 March 1934, and obtained an order for attachment before judgment. Some property was attached on 17th March 1934. Decree was obtained on 4 September 1934, and the petitioners applied for execution on 7 August 1935, against the property already attached. Notice was issued under Order 21, Rule 66, Civil P.C., and the opposite party, on 24 September 1935, preferred a claim to the property which the Munsif entertained, purporting to act under Order 21, Rule 58, Civil P. C, and allowed. The point taken in this application is that the Munsif had no jurisdiction to entertain under Order 21, Rule 58 a claim in respect of property which had not been attached in execution of a decree". This property was attached before judgment, and it is said any claim to it ought to have been preferred under Order 38, Rule 8 and should have been so preferred before the judgment was pronounced. Once the suit has been decreed no claim under this rule can be entered.

(2.) At the hearing before us it was suggested for the opposite party that once a decree has been passed and execution taken property attached before judgment should be deemed to have been attached in execution. This seems to me to be a very debatable proposition. I would prefer to approach the matter from another angle. First, I would point out that neither in Order 21, Rule 58, nor in Order 38, Rule 8 are there any words conferring on a third party owner of property the right to make a claim. What both these rules say is that "where any claim is preferred" certain procedure shall be followed. It seems to me that neither of these rules create any right in the party but by implication they both recognize the right of any owner of property to say "This is mine". This right does not need to be created by statute. It is there. If there was a lacuna in the Code, that would not take away the right of an owner of property in his property. Secondly, Mr. Baldeva Sahay's ingenious argument for the petitioners ignores the fact that Order 38, Rule 8 gives directions as to procedure "where any claim is preferred to property attached before judgment". There are no qualifying words limiting its application to a claim preferred before the judgment. The language of the rule is general and provided the attachment was before judgment a claim preferred at any time is within the language of the rule. The Court was, therefore, within its duty in investigating the claim in the manner hereinbefore provided for the investigation of claims to property attached in execution of a decree for the payment of money;

(3.) that is to say under Order 21, Rule 58 and succeeding rules. This view is supported by Basiram Malo V/s. Kattyayani Debi (1911) 38 Cal 448. Therefore the Munsif was entitled to deal with the claim under Order 21, Rule 58. It was, of course, within his power to refuse investigation under the proviso to Rule 58(1) if he considered "that the claim or objection was designedly or unnecessarily delayed." But as pointed out in the Calcutta decision just cited, there was nothing unreasonable in the claimant's conduct if he waited until there was an actual threat to his property and preferred his claim then. It is not necessary for any person who has a claim to property attached before judgment to prefer a claim at that stage though he may do so if he wishes under the provisions of Order 38, Rule 8. His failure to do so, however, does not necessarily amount to any negligence which would justify his subsequent claim being dismissed under the proviso to Order 21, Rule 58(1). I would dismiss the application with costs: hearing fee two gold mohurs. Fazl Ali, J.