RAMANAMMA ALIAS VIDEHI PATNAYAKAM Vs. BATHULA KAMARAJU

JUDGEMENT

(1.) Appellants contention before us is that the suit is barred under Article 13 of the Indian Limitation Act. This Article is clearly inapplicable in terras, since the plaint contains no prayer to alter or set aside any decision or order of a Civil Court. Appellants Counsel, however, argues that the District Munsif s order, dated 6th December 1910, allowing his clients claim under Order XXXVIII, Rule 8 (attachment before judgment), is governed by Order XXI, Rule 63, and unless set aside, will become final; in which case it will preclude any proceedings against the same property in execution of the decree subsequently obtained. Hence, whatever the prayer in the plaint, the suit must be treated as a suit to set it aside: otherwise it will not be maintainable at all.

(2.) As authority for his proposition that Order XXI, Rule 63, governs orders passed in investigation under Order XXXVIII, Rule 8, Mr. Chenchiah relies on a ruling in Bisheshar Das v. Ambika Pershad 89 Ind. Cas. 622 ; 37 A. 575 ; 13 A.L.J. 732. This is, no doubt, direct authority in his favour, but with all respect, I am unable to follow it. Order XXXVIII, Rule 8, simply provides for the manner of investigation into claims to property sought to be attached before judgment: and I can see no ground for holding that, as stated by the learned Chief Justice in the case above quoted, its effect is to incorporate all the provisions of Order XXI and amongst them Rule 63. The manner of an investigation and the finality of the order passed on the same investigation are two totally different things. In the absence of a specific provision, I should be most loath to hold that an order passed under Order XXXVIII, Rule 8, was final in the sense of determining the ownership of the property in dispute even for the purpose of the suit in connection with which it was passed. It would be both unfair and inexpedient to drive a plaintiff into a fresh litigation to establish a defoliant s title to property, with a view to attachment, before it is certain that he will secure a decree under which to attach.

(3.) In my opinion the suit as framed will and the existence of the order releasing the attachment before judgment is no bar to it. It is not time-barred.