Bharat Singh vs Sheo Parshad Giani Ram & Ors. on 24 May, 1977

Delhi High Court
Bharat Singh vs Sheo Parshad Giani Ram & Ors. on 24 May, 1977
Equivalent citations: AIR 1978 Delhi 122, ILR 1977 Delhi 695
Author: P Narain
Bench: P Nrain, P S Safeer


JUDGMENT

Prakash Narain, J.

(1) This judgment will dispose of R.F.A. 28-D of 1965 and Civil Revision No. 111-D of 1964, both filed by one Bharat Singh.

(2) R.F.A. 28-D of 1965 is directed against the judgment and decree of a Sub Judge 1st Class, Delhi, dismissiag the appellant’s suit only on the ground that it was barred by limitation.

(3) This suit was filed by the appellant against five defendants for a declaration that shops Nos. 32,45 and 46 situate at Narela mandi in the Union Territory of Delhi belonged to him and his brother Kirpa Ram (defendant No. 5) and that the sale of the said three shops in execution of a decree dated March 18, 1950 passed by the court of Shri Parshotam Sarup, Sub Judge 1st Class, Delhi, was null and void and did not confer any rights on defendants 3 and 4, the auction-purchasers.

(4) According to the appellant he, Kirpa Ram, (defendant No- 5) and Maha Chand are the sons of one Ram Narain. Mst. Bhagirathi (defendant No. 2) is the widow of the said Maha Chand. The appellant and Kirpa Ram constituted a joint Hindu family after the death of their father Ram Narain and Mst. Bhagirathi lived with them but was not a member of the coparcenery. It was alleged that on March 18, 1950 Mst. Bhagirathi got a collusive decree for Rs. 5900 passed in favor of firm M/s. Sheo Pershad Giani Ram (defendant No 1 ), the decree being against M/s. Jai Ram Dass Ram Narain, the joint Hindu family firm of the appellant and Kirpa Ram. On July 18, 1951 the appellant and other members of his aforesaid joint Hindu family firm filed a suit in the court of Shri S. D. Tyagi, Sub Judge 1st Class, Delhi. (Suit No. 733 of 1951) for a declaration that the said decree dated March 18, 1950 was a nullity and was not executable against the appellant and the property of the joint family of Jai Ram Dass Ram Narain and for a permanent injunction restraining defendant No. 1 from proceeding with the execution of the said decree and getting the coparcenery property of the appellant sold in execution of the said decree. One of the properties mentioned in the said suit as being coparcenery property were shops Nos. 37, 45 and 46 situate at Narela. This suit was decreed

(5) The suit was resisted by defendant No. 1, defendant No. 2, defendant No. 3 and defendant No. 4. Kirpa Ram, defendant No. 5 supported the suit. According to the contesting defendants the suit was misconceived and time-barred. They denied any collusion between Mst. Bhagirathi and defendant No. 1. The also pleaded that dismissal of the objections under Order 21, rule 58 CP.C. to the attachment of the said shops by an order of the executing Courtdated August 19, 1950 was final and conclusive inasmuch as no suit was filed under Order 21, rule 63 Civil Procedure Code . Therefore, the attachment and sale could not be challenged. They also pleaded a decision of the High Court of Punjab in R.F.A. 151 of 1954 in which it was held that Mst. Bhagirathi was a one-third absolute owner of the property of the coparcenery of the descendants of Ram Narain and it was against her one-third share that the decree for Rs. 5900 was to be executed. It was further pleaded that the appellant was merely delaying the process of court and was unnecessarily harassing defendants 1 to 4.

4.After replication was filed by the appellant, the trial Court framed the following issues :-

1. Whether the present suit is barred by principle of rcs judicata ? O.P.D.

2.Whether the suit is barred by limitation ? O.P.D.

3.Whether the suit does not lie in the present form ? O.P.D.

4.Whether the suit is properly valued for purpose of court fee and jurisdiction ? O.P.D.

5.Whether the defendants are entitled to special costs u/s 35(a) Civil Procedure Code . ? O.P.D.”

(6) On issue No. 2 the trial Court came to the conclusion that the appellant’s objections under Order 21, rule 58 having been dismissed on August 19, 1950, and the suit not having been brought witinn one year it was clearly barred by time. No plea was raised a” that stage or in the trial Court by either party that the instant suit was a title suit challenging the attachment made on June 29, 1956, i.e. the attachment taken out by defendant No. 1 for the second time after dismissal of the First Execution Application on January 10, 1953. The trial Court rejected the appellant’s contention that it stood proved on the record that the First Execution Application had been dismissed on January 10, 1953 and, therefore, the dismissal, of the claim under Order 21, rule 58 Civil Procedure Code . on August 19, 1950 was irrelevant. The contention that the objections under Order 21, rule 58, Order 21, rules 90 and 100 and Section 47 and Section 151 Civil Procedure Code . having been dismissed on December 1, 1963, the suit as filed on December 3, 1963 under Order 21, rule 63 Civil Procedure Code . would be within time, was negatived.

(7) Having held the suit was barred by limitation, the trial Court. did not choose to decide Issue No. 4. Issue No. 1 was also not decided fully. Issue No. 3 was given up by the defendants and so, was not decided. Being impressed by the fact that the suit in question was filed after so many years of the dismissal of the claim under Order 21, rule 58 Civil Procedure Code . on August 19, 1950 the trial Court ordered compensatory costs under section 35A Civil Procedure Code . in favor of defendant No. 1 Aggrieved by the above decision the appellant has come up in appeal and the only point for decision is whether the suit was barred by limitation.

(8) Whether the present suit is maintainable or not and whether it is liable to be decreed or dismissed on merits or in law is not a matter which we are called upon to decide at this stage. Indeed, the matter has not been gone into by even the trial Court. Any observations, therefore, that may be made hereafter were without prejudice to the suit being decided by the trial Court and those observations will not affect the merits of the suit. As noticed earlier, since we have to decide only the question of limitation, the observations that we make must be read in the context of the suit being within time or barred by time and in no other context.

(9) The obvious fallacy in the impugned judgment and decree is that it proceeds on the assumption that the present suit has been filed under. Order 21, rule 63 Civil Procedure Code . in consequence of the claim of the appellant under Order 21 rule 58 Civil Procedure Code . having been dismissed on August 19, 1950. Admittedly, no suit was filed after the dismissal of that petition. The present suit has been filed after the dismissal of the petition under Order 21, rule 58, Order 21, rules 99 and 100 read with Section 47 and Section 151 Civil Procedure Code . This petition was dismissed on December 1, 1962 and the suit was filed on December 3, 1962. The first question which comes in for determination is whether there is any evidence on record to justify the above proposition of fact.

(10) It is an admitted case that no suit was filed after the dismissal of the application under Order 21, rule 58 Civil Procedure Code . on August 19, 1950. It is also not in dispute that the sale of these three shops took place on July 17, 1962 and an application under Order 21, rule 58, Order 21, rules 99 and 100 and Section 47 and Section 151 Civil Procedure Code . was filed on August 13, 1962. This application was dismissed on December 1, 1962. The trial Court, in our opinion, has erred in treating the only relevant date of dismissal of the claim under Order 21, rule 58 C.P.C. to be August 19, 1950.

(11) The trial Court has relied on the judgment of the High Court, Exhibit D.2, to come to the conclusion that the objections of the appellant under Order 21, rule 58 Civil Procedure Code . were dismissed on August 19, 1950. There is no doubt about this fact. The question really is whether the relevant date for the present suit is August 19, 1951 or December 1, 1962.

(12) This brings us to the question as to whether the execution application of defendant/respondent No. 1 was dismissed on January 10, 1953 and if so, what is its effect on the attachment that was made and also whether the non-filling of a suit after dismissal of the objections under Order 21, rule 58 Civil Procedure Code . on August 19, 1950 makes the decision on the claim in that application so conclusive as to bar the filing of a second application when the second attachment was effected on June 29, 1956.

(13) Both Mr. S. N. Chopra, learned counsel for the appellant and Mr. J. R. Goel, learned counsel for respondent 3 and 4, have jointly prayed that the dates and events January 10, 1953 and June 29, 1956 be taken as proved on the record.

(14) Order 21, rules 58 and 63 read as under at the relevant time :-

“58. (1)Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was party to the suit : Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly unnecessarily delayed.”

“63.Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims .to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.”

(15) Admittedly, no suit was filed after the dismissal of the objections in 1950. The question is whether in view of the execution application having been dismissed in 1953 the rule as to conclusiveness would be attracted. In our opinion, there is no bar to a second application under Order 21, rule 58 Civil Procedure Code . being filed if the execution application was dismissed in 1953, as it was, and despite the appellant not having filed a suit under Order 21, rule 63 Civil Procedure Code . on dismissal of his earlier application in 1950. Indeed, had the appellant filed a suit under Order 21, rule 63 Civil Procedure Code . the same was bound to be dismissed as infructuous on the execution application being dismissed in 1953 because the moment the execution application was dismissed the attachment ceased and there was nothing left to challenge. The bar of conclusiveness would apply only if there is any subsisting attachment and not otherwise. Similarly, the bar of the proviso to Order 21, rule 58 Civil Procedure Code . enacted by the Punjab High Court would be attracted if there was a subsisting attachment. It would be an exercise in futility to file or go on with a suit under Order 21, rule 63 Civil Procedure Code . if there was no subsisting attachment.

(16) In Bibi Amar Kaur Vs. Shiv Karan and others. , a bench of that Court held : “ORDER21, R. 58 of the Code provides a summary remedy to third parties, i.e., persons other than judgment-debtors or their legal representatives for raising objections to the attachment of the property. Where a third party has a claim or an objection to the attachment of property attached in execution of a decree, there are two courses open to him. He may straightway file a suit claiming the appropriate relief, or he may file an objection-petition under “0. 21, R. 58 of the Code of Civl Procedure to the Court executing the decree. The remedy provided thus is not only summary but is also concurtent and results only in a summary investigation and not a full trial of the issues between the parties. The party aggrieved by an order passed after such investigation has to file a suit under R.63 within one year to establish the rights which he claims to the property in dispute. If the suit is instituted by the decree-holder, against whom an order has been passed on objections filed under 0. 2.1. R. 58 releasing the property from attachment, the right which he claims in the suit is the right to have the property attached in execution of the decree against the judgment-debtor. If, on the contrary, the plaintiff is the objector, who has been unsuccessful in the objection proceedings before the executing Court, the right which he claims in the suit under 0. 21, R. 63 is the right to have the property in dispute released from attachment on the ground that it belongs to him and not to the judgment-debtor. Subject to the decision in that suit, the order passed by the execution Court is conclusive. It is, however, essential that the order on the application under 0. 21, R. 58 must be subsisting when the sun is filed. If the objections under O. 21, R.58 are dismissed and the attachment is upheld and for some reason or the other the attachment subsequently comes to an end, the order upholding the attachment would, in the circumstances, become defunct and in such an event there is no purpose in filing a suit to have the attachment set aside.”

(17) In the same case the bench explained that the words, “such attachment” in Rule 58 point to the conclusion that the order passed on the objections is operative only in respect of the particular” attachment against which objections are filed. If that attachment ceases for any reason, there is nothing further to challenge.

(18) In Najimunnessa Bibi Vs. Nacharaddin Sardar , a bench of that High Court also took the same view as was later taken by the Punjab High Court. It was held that where an attachment was released within one year after the order dismissing the claim case and execution proceedings were again taken after the lapse of several years, a title suit brought to resist the attachment was not barred by limitation. Dealing with the phrase “SHALLbe conclusive” in Order 21, rule 63 Civil Procedure Code . Rankin, J. observed: The meaning of the words ‘shall be conclusive’ is that the act of the Court is to be valid unless there is a suit. It means that the attachment held valid in the claim case shall be valid and the attachment removed shall be as though it never was, so far as the parties are concerned. The rule seems to mean that subject to a suit factum valet the act of the Court shall not be questioned save in that way. The effect of the decision as to possession in other proceedings in which that question may again arise is not the matter to which the words ‘shall be conclusive’ are directly addressed. The principle is that the object of making a claim in execution is to remove the attachment, that when the attachment is withdrawn that object is gained and that if there exists no attachment, or proceeding in execution on which the order in the claim case can take effect, one is not bound to bring a suit complaining of such order. It is no answer at all to say that a decree-holder’s suit ander R. 68 has always to be brought after the attachment is removed. If the decree-holder succeeds, he gets the attachment restored as at the date it was made and that is what he fights for.”

(19) In Radhabai Gopal Joshi v. Gopal Dhondo Joshi and another A.I.R. 1944 Bombay 50(3), again the above noted views were reiterated.

(20) It was urged on behalf of the respondents that suppose the attachment lapses and suit is not filed, then what would be the position ? Would not the rule of conclusiveness apply if on an earlier occasion the suit had not been filed ? The answer is to be found in the observations of the Rankin, J., noted above. Further, in Kumara Goundan v. Thevaraya Reddi and others A.I.R. 1925 Madras 1113(4), It was observed by Ramesam, J. : “INthe first place, if it is conceded that the order becomes useless and inoperative when the attachment ceased within one year of the order, this is a concession not allowed by the literal reading of the section. Secondly, if the operativeness of an order on a claim petition is to be regarded as conditional on the continuance of the attachment, it is difficult to see why the cessation of the attachment within one year should destroy the operativeness and the cessation of it beyond one year should have just the opposite effect merely because a suit to set aside could not be brought more than one year after the date of the order.”

(21) In Chet Singh v. Gujar Singh and others, A.I.R. 1931 Lahore 74(5), Addison, J. observed : “The order under 0.21, R.63, is conclusive in the sense that it cannot be agitated again in the execution proceedings in which it was passed unless a suit is brought within one year of the date of the order, i.e., that it is conclusive as between the claimant and the decree-holder who is proceeding against the property. If, however, the decree-holder raises the attachment within a year, obviously “THERE is no reason why the claimant should institute a suit to set aside the order as there is no attachment in force. It makes no difference if the attachment is raised after the termination of on,” year. It does mean that in those proceedings the claimant is running a risk and will be estopped from contesting the decree-holder’s right to proceed against the property, but if the decree-holder does not sell the property and the decree is satisfied otherwise, the fact that the attachment was raised more than a year after the date of the order on the claim does not make any difference.”

(22) In Ramchandra Singh and others v. Mt. Bibi Khodaijatut Kubra and others A.I.R. 1945 Patna 369(6), a bench of that court noticed with approval the views of the Calcutta and Madras High Courts and laid down the proposition that the conclusiveness of an order in a claim case contemplated by Order 21, rule 63 Civil Procedure Code . is conditional on the continuance of the execution proceedings and the attachment ensuing there from, and that consequently when an order is made on an application under Order 21, rule 58 of the Code dismissing a claim but the sale itself held in that execution proceedings is set aside and the attachment ipso facto comes to an end, a subsequent suit brought beyond one year by the claimant turn a declaration of his title is not barred under Article 11, Schedule I of the Limitation Act. It was further held that it was immaterial that the execution proceedings came to an end within or beyond one year of the date of the order in the claim case.

(23) Order 21, rule 57 Civil Procedure Code . has some relevance and may be noticed at this stage. This provision reads as under :- “57.Where any property has been attached in execution of a decree but by reason of the decree-holder’s default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application the attachment shall cease.”

If the execution application is not prosecuted and is dismissed for default it has the same effect as the dismissal of the execution application otherwise. The consequence of the dismissal of the execution application is that the attachment ceases. If the attachment ceases any suit filed under Order 21, role 63 Civil Procedure Code . would become infructuous and will have to be dismissed for there would be nothing which the plaintiff could claim and there would be nothing in respect of which the plaintiff could feel aggrieved.

(24) Apart from the concession by the learned counsel that the execution application was dismissed on January 10, 1953, this fact stands established on a reading of paragraph ll(g) of the grounds of appeal in Execution First Appeal No. 2-D of 1963 filed in the High Court of Punjab, Circuit Bench at Delhi which was brought on record. The trial Court was in error in not relying upon this substantive piece of evidence and treating August 19, 1950 as the date from which limitation had to be computed for the filing of the present suit. Inasmuch as the execution application stood dismissed on January 10. 1953 the appellant was not required to prosecute his claim by a suit under Order 21, rule 63 Civil Procedure Code . on dismissal of his claim petition on August 19, 1950. The date of December 1, 1963 was the only relevant date from which the period of limitation had to be computed.

(25) Mr. J. R. Goel then sought to sustain the decree on the ground of res judicata. He relied on Mangru Mahto and others v. Thakur Taraknathji Tarkeshwar Nath and others, . The decision relied upon does not help to advance the contention of the learned counsel. It cannot be said that the dismissal of the claim petition in 1950 would operate as res judicata to the claim petition preferred in 1962. In the case relied upon it has been clearly held that a claim under Order 21, rule 58 Civil Procedure Code . is not a suit or a proceeding analogous to a suit. An order in the claim proceedings does not operate as res judicata. It is because of rule 63 that the order becomes conclusive. It is further clarified in this very decision that the effect of Rule 63 is that unless a suit is brought as provided by the rule, the party against whom the order in the claim proceedings is made, or any person claiming through him, cannot reagitate in any other suit or proceeding against the other party or any person claiming through him the question whether the property was or was not liable to attachment and sale in execution of the decree out of which the claim proceedings arose, but the bar of Rule 63 extends no further. Mangru’s case was not considering the effect of the attachment being raised or ceasing to be operative) nor was it considering a second claim petition under Order 21, rule 58 Civil Procedure Code . being filed on a fresh attachment being made.

(26) Mr. Goel also relied upon Sant Lal and others v. Firm Udhi Ram Walait Ram, A.I.R. 1938 Lahore 568(8) arid urged that no claim petition under Order 21, rule 58 Civil Procedure Code . was competent once the sale had taken place because the attachment ipso facto stood determined on the property being sold. The bench, no doubt, laid down the above proposition but it is pertinent to note the further observations in the judgment of Addison, J., namely, “IT is true that by sub-rule (2) of that Rule (Rule 58) a Court is not bound to postpone the sale pending the investigation of the claim but usually it should do so except where it is of opinion that the claim is frivolous or vexatious or meant to delay the execution proceedings.”

If that be the correct proposition then, and we say it with respect, the proposition laid down by the bench does not appear, to be correct. What happens to a claim petition filed before sale where the sale is not postponed and it does take place ? Does such a claim become infructuous ? If the proposition laid down by the Lahore High Court was correct then a claim petition under Order 21, rule 58, though otherwise having merit, may stand defeated because the court did not stay the sale and sale lakes place. Indeed, it is keeping in view the uncertainty of the proposition propounded in the above noted decision of the Lahore High Court, which followed the views of Calcutta, Patna and Rangoon High Courts, that Rule 58 of Order 21 has been amended recently and it has been clarified that no claim or objection under Rule 58 shall be entertained where, before the claim is preferred or objection is made the property attached has already been sold.

(27) Giani Ram appearing in person for respondent No. 1 wanted to address us on the merits of the suit but we did not allow it. He made no submissions on the question of limitation.

(28) In this view of the matter we accept the appeal, set aside the finding of the trial Court that the suit is barred by limitation and remand the suit for trial in accordance with law. In the circumstances of the case there will be no order as to costs in this appeal.

(29) We now come to Civil Revision No. 111-D of 1964. This revision petition has been filed by Bharat Singh against an order dated December 19, 1963 passed by a Sub Judge 1st Class, Delhi, dismissing Bharat Singh’s application for review of an order passed by the same Sub Judge on January 5, 1963, The application was moved under Section 114 and Order 47, rule I read with Section 151 Civil Procedure Code . In regard to the order dated January 5, 1963 confirming the auction sale in Execution Case No. 452 of 1962. The Sub Judge dismissed the review application on the ground that as far as his court was concerned, there was no injunction order from the court of Shri R. L. Lamba, Sub Judge 1st Class, Delhi, either restraining the court or the decreeholders from getting the sale confirmed in the execution case started by M/s. Sheo Parshad Giani Ram, respondent No. 1 herein. There was some controversy as to whether the injunction order, as served on the decree-holder, respondent No. 1, was an injunction order “till further orders” or was an injunction order operative only till January 4, 1963.

(30) In our opinion, it is not necessary to go into the facts of the case because the impugned order dismissing the review application can be upheld on a preliminary point, namely, that no review petition under Order 47, rule I Civil Procedure Code . could be filed by Bharat Singh.

(31) Order 47, rule I Civil Procedure Code . reads as under :-

“1.(1) Any person considering himself aggrieved :-

(A)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(B)by a decree or order from which no appeal is allowed, or

(C)by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.”

On a very reading of the rule it is clear that a review application can be filled only by a party to the lis in which the order sought to be reviewed has been passed. It cannot be preferred by a third party. It was urged on behalf of the petitioner that the phrase “any person considering himself aggrieved” would include anyone who is adversely affected by the impugned order, whether that person is or is not party to the list in which the impugned order has been passed. We do not agree. As will be apparent from a reading of the rule any person considering himself aggrieved by a decree or order may apply for review provided he can establish that he “from the discovery of new and important matters of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made.” This postulates that the person applying for review has to satisfy two conditions, namely, that he is aggrieved by the order and also that he for the reasons mentioned was not in a position to bring that fact to the notice of the Court earlier which resulted in a wrong order being passed. If these two conditions are necessary before a review application can be moved, it follows that the review application has to be made by a person who was a party to the list decided by the impugned order or decree.

(32) No authority contrary to the view that we have expressed above was cited, nor was any authority cited in favor of the view that we have expressed. We are, however, fortified in taking the view that we have taken on the same principle that a decree or order adversely affecting a person who is not a party to the list in which that order or decree is passed is in law not binding on him. Such a person, therefore, can ignore the order or decree which adversely affects him and so, cannot apply for a review of that order or decree. He may take such other steps as may be available to him in law to protect his rights as and when the order or decree adversely affecting him is sought to be enforced so as to jeopardise his rights. (See 61 Indian Cases 534).

(33) We, therefore, dismiss this revision petition but in the circumstances of the case make no orders as to costs.

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