MT BAS KUAR Vs. GAYA MUNICIPALITY

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the Municipal commissioners of Gaya Municipality under Order 21, Rule 63, Civil P.C., in the following circumstances: The plaintiffs having obtained a money decree against defendant 5 on 23 April 1932 proceeded to attach in execution of their decree a house in Gaya which according to them belonged to the judgment-debtor. Thereupon defendants 1 to 4 (sons of one Bullak Ram) preferred a claim under Order 21, Rule 58, alleging that the house in question had been purchased by their father from defendant 5 for a sum of Rs. 1000. This claim was allowed on 20th November 1933 and the house was released from attachment. On 11 September 1934 defendants 1 to 4 executed a conveyance in respect of the house in favour of defendant 6 for a sum of Rs. 1500. Thereafter on 6 October 1934 the plaintiffs brought the present suit for a declaration that the deed set up by defendants 1 to 4 was a fraudulent one executed by defendant 5 in the name of a near relative without any consideration and as such it was illegal and defendants 1 to 4 did not derive any title thereunder.

(2.) Defendant 6 was made a party to the suit on 15 May 1935. The trial Court dismissed the suit but it was decreed by the District Judge of Gaya who has held that the conveyance executed by defendant 5 in favour of the father of defendants 1 to 4 as well as that executed by defendants 1 to 4 in favour of defendant 6 were without consideration and never intended to pass any title and they did not confer any title upon the transferees. In this appeal, which has been preferred by defendant 6, the findings of fact arrived at by the learned District Judge have not been questioned but his decree is attacked on three grounds. The first ground, which is the only serious ground, is that the suit is barred by limitation against defendant 6 who was made a party to the suit more than a year after the decision of the case under Order 21, Rule 58, Civil P.C.

(3.) The appellant's contention is undoubtedly supported by the decision of the Calcutta High Court in Protap Chandra V/s. Sarat Chandra A.I.R (1921). Cal. 101 but with great respect to the learned Judges who decided that case I am not prepared to accept their view on the question of limitation. It has been held in a number of cases that a suit brought under Order 21, Rule 63 is a mere continuation of the proceedings in a claim petition. Belying on this principle, the Madras High Court has held in that a purchaser of property from a claimant after an order has been passed in his (claimant s) favour but before a suit under Order 21, Rule 63 was instituted, is an alienee pendente lite and is therefore not a necessary party to the suit; and if the necessary parties had been brought on the record within one year, the alienee could not advance the plea of limitation as Section 22(2), Limitation Act, expressly (excludes the operation of Clause (1) in such cases.