Posted On by &filed under High Court, Madras High Court.


Madras High Court
Ponaka Balarami Reddi And Ors. vs Hazi Mahomed Abdul Aziz Badshah … on 11 March, 1914
Equivalent citations: (1914) 26 MLJ 499
Author: Tyabji


JUDGMENT

Tyabji, J.

1. The plaintiffs and defendants are rival claimants for the ownership of the property which is referred to in the plaint. The plaintiffs claim that they are entitled to it under a sale deed dated 27-7-1901; the defendants claim to be purchasers in a Court-sale in execution of a decree.

2. The learned District Judge has held that the plaintiffs are barred from suing on their title by the operation of Section 283 of the Civil Procedure Code 1882. He held that the plaintiffs were parties against whom an order (which is Exhibit II in the case) had been passed in previous execution proceedings in 1903 and that the suit not having been brought within one year from those proceedings, it is barred under Article 11 of the first schedule to the Limitation Act.

3. Exhibit II was an order passed in Civil Miscellaneous Petitions Nos. 440 and 451 of 1903 by the District Judge of Nellore on the 22nd September 1903. The order was that the attachment sought to be raised by the petitioners should be raised. It would therefore appear that Exhibit II cannot be interpreted as being an order against the plaintiffs within the meaning of Section 283. Exhibit II did that which the plaintiffs then desired to be done, namely, that the attachment should be raised. It is true that in the course of Exhibit II the learned Judge expressed an opinion adverse to the grounds on which the plaintiffs then relied, and he no doubt came to the conclusion that those grounds were not well founded. That does not make the plaintiffs ” the party against whom an order was passed under Sections 280, 281 or 282″ for as I have said the order was that the attachment should be raised. The order in Exhibit II must on the face of it be construed as one joint order dealing with the two petitions for the attachment being raised. It cannot be construed on the basis of its being three orders. It may be conceded that if the Judge had in fact desired to pass three distinct orders, one on the contention of each of the two petitioners, and a third on the contention 6f the then 4th defendant in that case the order he would have passed on the plaintiffs’ petition would have been against their claims. The contention on behalf of the defendants is that the interpretation of Exhibit II to which I have first referred is not correct. In this connection certain proceedings in the High Court of a later date are relied upon by the respondent. These proceedings were considered irrelevant by the Lower Court but have been admitted by the consent of both sides before us. These proceedings, it is argued, preclude us from putting on Exhibit II the interpretation which I have just stated; alternatively it is said that other Judges of this Court have already interpreted Exhibit II with reference to points now arising and that we ought not to take a different view. Before I can deal with this argument, it will be necessary to state somewhat fully the facts out of which the present appeal arises. I shall as far as possible speak of the plaintiffs and defendants meaning thereby the present plaintiffs and the present defendants irrespective of their designation in the previous proceedings.

4. The property in question belonged to four families, from whom the plaintiffs or their predecessors in title (to all of whom I shall refer as the plaintiffs) claim to have purchased under the sale deed dated 27th July 1901. The first and second defendant obtained a decree, it is alleged, against Narasa Reddy representing one of the four families to whom the property, according to the plaintiffs orginally belonged. In execution of that decree the property was attached in April 1903 ; and the plaintiffs then put in a claim petition M. P. No. 451 objecting to that attachment and claiming that the property belonged to them and not to the judgment debtor. There was another petition M. P. No. 440 by persons claiming to be the mortgagees of the property and claiming that the attachment should be subject to their mortgage claims. Both those petitions were dealt with at the same time by the District Judge in Exhibit II. At the hearing of those petitions one Ragava Reddy also objected to the attachment. He belonged to and apparently represented the other of the four families, and claimed that the attachment should be raised, because the property was joint family property and previous to the attachment it had by the law of survivorship passed out of the ownership of the judgment debtor (then deceased) and devolved upon himself. This contention was accepted by the learned District Judge who disposed of the claim in Exhibit II. But from Exhibit II it also appears as I have already had occasion to say, that the plaintiffs did not in the opinion of the learned judge make out their claim to be considered as the bona-fide purchasers of the property attached. In the Order, the opinion was also expressed on the other hand that the other petitioners were entitled to rely upon the mortgage put forward by them. In the result he passed one order, namely, that the attachment should be raised. Against that order an appeal was taken to the High Court being appeal against order No. 3 of 1904. To that appeal neither of the two petitioners were parties, the learned Judges (Davies and Sankaran Nair, JJ.) after stating that fact said that the order raising the attachment was set aside ” so far as the 4th defendant was concerned.” This order cannot, therefore, be said to affect the rights of the present plaintiff as they stood prior to the appeal. If I am right, therefore, in holding that the order under Exhibit II must be considered to be one joint order to the effect that the attachment should be raised, then that order, so far as the plaintiffs are concerned, was not affected by judgment in appeal against order No. 3 of 1904. That judgment is dated the 4th October 1904. After that judgment the execution was proceeded with. There was an application for a warrant of sale in pursuance of which finally the property was sold on the 5th of October 1909. But in the meantime the plaintiffs put in a petition M. P. No. 441 of 1906 applying that the sale should be stopped. They relied upon Exhibit II which, they claimed, was final and conclusive as regards their rights, because the defendants had not within a year thereof instituted a suit for setting aside the order raising the attachment. This contention of the plaintiffs was, on the 18th of July 1906, accepted by the then District Judge and he decided that the defendants’ application for sale must be dismissed. In other words he held that the sale could not be proceeded with. Against that order of the District Judge Civil Revision Petition No. 549 of 1906 was put in. The petition was dealt with in the first instance by Mr. Justice Wallis on the 12th February 1908. According to Mr. Justice Wallis’s view Exhibit II ought to be construed as three orders and it ought to be construed as including an order that the present plaintiffs had no claim to the property; in other words that they were parties against whom such an order was passed as is referred to in Section 283 of the Civil Procedure Code. The logical result of Mr. Justice Wallis’s interpretation of Exhibit II would be not only (1) that the sale could not then have been stopped by the plaintiffs but (2) it might also imply that the plaintiffs’ rights, if any, in the property were lost by the fact that they had not instituted a suit within a year of Exhibit II. If that interpretation of Exhibit II is correct and if both the results to which I have referred must follow from that interpretation, then of course the plaintiffs must fail in their present suit. Even on Wallis J’s construction of Exhibit II Mr. S. Sreenivasa Aiyengar argues that the suit is not barred. For reasons which I shall indicate later, it is unnecessary in my view to deal with that construction of Exhibit II and with Mr. S. Sreenivasa Aiyengar’s argument on this basis. There was an appeal from Mr. Justice Wallis’s judgment and in that appeal Mr. Justice Miller and Mr. Justice Pinhey decided on the 7th September 1908 that the question whether or not the plaintiffs had lost their right to establish their claim to the property by a suit by their having failed to do so within a year of Exhibit II was a question which it was unnecessary to decide in those proceedings. They held further that the defendants were not bound to institute a suit within a year of Exhibit II. On that point and so far as the further defendant in those proceedings were concerned, it seems to me that there could not be any question that the sale could proceed after the judgment of Davies and Sankaran Nair JJ. allowing the appeal and permitting the sale to be proceeded with. However that be, the question whether the plaintiffs were barred from putting forward a claim on the basis of the sale deed to them dated the 27th of July 1901 was expressly not decided by the Court of appeal, and it is clear that the question was not before them which we have to decide, vis., whether it was for the plaintiffs to institute a suit under Section 283 of the Civil Procedure Code within a year after Exhibit II. All they had to consider was whether it was for the defendants to institute a suit. It is true that they agree with Wallis J’s view that the effect of Exhibit II was to disallow the claim of the plaintiffs. But that view was expressed in considering whether the effect of Exhibit 11 was to necessitate a suit by the defendants under Section 283. On the other hand they expressly refer to the question whether the plaintiffs should put in a claim petition in the sale proceedings and decline to consider the appeal as such a claim. There is no doubt that the question is complicated by the fact that Exhibit II was one joint order dealing really with three claims, and by the further fact that in the appeal to the High Court against that order the plaintiffs were not parties and yet the order was reversed. Though the plaintiffs were interested in having it confirmed, yet the order was reversed and the plaintiffs were not bound by the reversal as their rights would not be affected by proceedings to which they were not parties.

5. Before considering whether owing to these proceedings I ought to take a view different from that which I have expressed as appearing to me to be the prima facie interpretation of Exhibit II or whether the effect of Exhibit II was modified by any of the proceedings to which I have referred, I think it necessary to consider some of the decisions to which we have been referred.

6. The general principle underlying those decisions, as I understand it, seems to be governed by the fact that the proceedings under Section 278 and the following sections which are referred to in Section 283 are primarily for the purpose of dealing with attachments in execution proceedings.

7. In so far as any decision on the claims of parties other than the judgment-debtor is necessary for the continuance of the execution proceedings, that decision has to be promptly given by the authorities entrusted with the execution proceedings in the exercise rather of administrative than judicial function; and in so far as on their decision the execution proceedings are carried out, the parties who are affected by their decision have a short period of limitation within which that decision can be contested. The decisions during the course of the execution ate necessary for the execution proceedings being carried through and it is necessary that such proceedings shall not be delayed, nor their effect kept in suspense, after they have been acted upon. If, however, for any reason the execution proceedings are not pursued to their end, and if the parties are, owing to the arrest of such proceedings, left in the same state in which they were prior to the attachment, then the whole of the proceedings arising out of the attachment and the claim petition are, so to say wiped out, and the petitioner is not concerned with what may have been incidentally held with a view to that being effected which ultimately was not given effect to though it may be cessation of the attachment and the execution proceedings following it was not brought about by circumstances controlled by the unsuccessful claimants.

8. This seems to me to be the principle on which Ibrahim bhai v. Rabulabhai (1888) I.L.R. 13 B. 72 Gopal Purushotam v. Bai Divcili (1893) I.L.R. 18 B. 241 Krishna Prasad Roy v. Bipin Behary Roy (1903) I.L.R. 31 C. 228 and Kidarnath v. Rakhaldas (1888) I.L.R. 15 C. 674 were decided. Thus in Ibrahimbhai v. Kabulabhai (1888) I.L.R. 13 B. 72 the attachment was withdrawn though on the application not of the claimant but of another person, and it was held that the attachment being withdrawn it was unnecessary for the plaintiff to institute a suit as the object of the suit would have been to get the property released from attachment and that object had already been effected though through the agency of other parties. That decision was followed in Gopal Purshotham v. Bai Divali (1893) I.L.R. 18 B. 241 and it was there laid down that the withdrawal of the attachment replaced the parties in status quo ante. The principle on which the case of Umesh Chunder Roy v. Raj Bullubh Sen (1882) I.L.R. 8 O. 279 proceeded seems to me to have been the same. In that case it is stated at page 281; ” But it appears that no sale was held, because the judgment-debtor paid off the amount of the decree. The effect of that was that the attachment ceased and any right which the plaintiff’s mother acquired by purchase even though pending the attachment became valid, and nothing , having accrued to injure her right, if any, she had no occasion to bring any suit. The judge of the Court below says that the fact that the decree in execution of which the property was attached was paid off by the judgment-debtor makes no difference whatever. In this view we think that he is mistaken. The payment by the judgment debtor of the decretal amount did away with the necessity for a sale and the attachment being withdrawn the purchased right of the plaintiff’s mother stood good. See also Kidarnath v. Rakhal Das (1888) I.L.R. 15 C. 674.

9. In this connection I think it necessary to deal with a remark in Koyyana Chittena v. Doosy Gavaramma (1906) I.L.R. 29 M. 225 which may seem to be inconsistent with the principle that I consider to underlie the decisions. There in dealing with an argument, which the Court did not accept it was said at page 228: “The argument was that the decree having been eventually satisfied there was no reason for the plaintiffs to bring a suit, and the fact that it was not satisfied until after expiration of a year from the date of order was immaterial. The contention was that the order was only conclusive against the plaintiffs, if they failed to bring a suit so as to bar them from denying the right of the judgment-creditor to sell the land which he had attached and the right of a purchaser claiming under a sale in execution proceedings. ” And then later on at page 229 the court deals with this contention in the following terms ; ” We are of opinion, however, that the payment off not having been made within a year after the date of the order, the order is conclusive as between the claimants (plaintiffs) and the defendants. To hold otherwise would lead to uncertainty of title and would be inconsistent with the policy of the legislature in prescribing a short period of limitation for suits by parties against whom an order has been made in claim proceedings. To hold that the right of the unsuccessful claimant to bring a suit remains a state of suspended animation for an indefinite period after the expiration of a year from the date of the order against him, liable to be revived at any moment by the payment off of the amount of the decree, would lead to great inconvenience. On the facts of the case we are of opinion that the order under Section 283 was conclusive as between the plaintiffs and the defendants, and the order of the lower Appellate Court cannot be supported on the ground that it was not.”

10. There, no doubt, it was held that, if a claim petition is decided against the petitioner and that decision is not questioned by a suit instituted within a year, then the petitioner’s right to the property is barred notwithstanding that as a matter of fact the attachment may not be proceeded, with. But in that case there was a decision directly against the claimant and the decision was that the attachment should continue and that the execution should proceed. In this state of circumstances it may well have seemed to the court that it is not permitted to the unsuccessful claimant to wait and see whether the execution is proceeded with nor is the one year’s period of limitation necessarily made subject to active steps being taken for proceeding with the execution by Sale of the property or otherwise ; and that on the other hand the attaching creditor and the other parties concerned may well think that the decision will not be questioned by the unsuccessful claimant after the lapse of a year following the decision that the claimant had no right to intervene and that the execution proceedings may continue irrespective of any hindrance on the part of the unsuccessful claimant. I need only say with regard to this decision that the main fact on which it proceeds namely, a decision in the claim petition that the execution may proceed irrespective of the petitioner’s alleged claim does not exist in the present case. I do not think on the other hand that it was intended that the principle on which the cases to which I have referred were decided should be disregarded. On the contrary those cases were carefully considered and distinguished ; and if I am right in extracting the principle that I have extracted from those cases, then it seems to me that the case of Kovanna Chittenna v. Doosy Gavaramma (1905) I.L.R. 29 M. 225 does not apply to the circumstances with which we have to deal under Exhibit II in so far as the present question is concerned.

11. For these reasons I consider that on principle no less than on the construction of Exhibit II it ought to be held that after execution proceedings were arrested by that order, those parties who were instrumental in getting the proceedings arrested, were not bound by reason of any opinion expressed in Exhibit II to institute a suit for the purpose of contesting the correctness of that opinion. I am also of opinion that the judgments of Davies and Sankaran Nair, JJ. and of Miller and Pinhey, JJ. do not affect the position of the plaintiffs as regards the present suit. There being no order against the plaintiff in Exhibit II the suit is not barred, and it must be remanded to the lower Court, for being disposed of on the merits in accordance with law. The costs will be costs in the cause.

Spencer, J.

12. I agree.


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