Bharat Saw Mill Co. Ltd. vs Tarapada Sur

Sarkar, J.—This suit was instituted by the Plaintiff, Bharat Saw Mill Co., Ltd., in this Court against the Defendant Tarapada Sur for the recovery of Rs. 1,706-4-0 due on account of price of goods supplied. On December 4, 1945, the Plaintiff obtained an order in this suit attaching before judgment certain machinery which it alleged belonged to the Defendant. In January, 1946, certain persons, whom I will describe as the claimants, presented an application to this Court under Order XXI, Rule 58 of the Code of Civil Procedure, objecting to the attachment and claiming ownership of the attached machinery. On February 8, 1946, an order was made on this application, whereby, upon the claimants undertaking not to dispose of the machinery and upon their depositing with their attorney, Mr. G.C. Mitter, a sum of Rs. 1,750 to be held by the attorney free from any lien subject to further orders of this Court as security for the claim of the Plaintiff, the attachment was removed and the application was directed to stand over till after the hearing of the suit. The claimants duly deposited with their attorney, Mr. Mitter, the sum of Rs. 1,750 in terms of the said order. On May 29, 1946, a decree was passed in this suit against the Defendant Tarapada Sur for the said sum of Rs. 1,706-4-0 with costs and interest on judgment. Thereafter, on June 6, 1946, the application under Order XXI, Rule 58, came up for disposal and the following order was made:

The claim be dismissed. Mr. G.C. Mitter should continue to hold the maney deposited with him upon the terms contained in the order dated February 8, 1946, until further orders. Claimants should pay to the Plaintiff the costs of the claim proceedings.

The Plaintiff had its costs duly taxed and the costs that it was entitled to recover from the Defendant amounted to Rs. 1,033-6-4 and those that it was entitled to recover from the claimants, being the costs of the claim proceedings, amounted to Rs. 913-9-7. On August 15, 1946, the claimants filed a suit in the court at Hooghly for a declaration of their title to the attached machinery and for an injunction restraining the Plaintiff from executing its decree in this suit against the machinery. This was a suit under Order XXI, Rule 63 of the CPC and it was decreed in favour of the claimants on May 11, 1947. The position, therefore, is that the claimants are entitled to the machinery and these are not liable to be proceeded against in execution of the decree in this suit.

On September 7, 1949, the Plaintiff took out the present summons for an order that Mr. G.C. Mitter do pay to its attorney towards the Plaintiff''s claim and costs herein the sum of Rs. 1,750 deposited with him by the claimants under the order of February 8, 1946.

It is conceded that the Plaintiff is not entitled to be paid any portion of its decree against the Defendant out of the deposit. That this must be so is obvious. The security was furnished to obtain a release of the machinery from attachment and to protect the Plaintiff, should it turn out that the machinery belonged to the Defendant and that the claimants were not entitled to have the attachment removed. The claimants had no liability under the decree and there was no right to proceed against the moneys deposited by them except in the event of their claim to the machinery failing. Now that their claim has been finally established the Plaintiff is not entitled to the payment of its decree out of this sum.

The only question that has been canvassed on this application is whether the Plaintiff is entitled to be paid out of the deposit the costs of the claim proceedings that were awarded in its favour against the claimants by the order of June 6, 1946. I have formed the view that the question must be decided against the Plaintiff.

The present application is not one for execution of the order for costs against the claimants, but is by way of enforcement of the security directed to be furnished under the order of February 8, 1946. In order that the application may succeed, it has, therefore, to be shown that the deposit was made a security for these costs. It will be remembered that the order of February 8, 1946, provided that the deposit would be the security for the claim of the Plaintiff. It has, therefore, to be shown that the word "claim" in this order includes the costs of the claim proceedings. Here is where the Plaintiff fails. Ordinarily, the word claim is used to mean the substantive claim and not any costs. When the latter are also intended to be covered, the expression used is "claim and costs". But be that as it may, what claim was intended in this case? Obviously the claim of the Plaintiff against the Defendant. This appears to me to be plain from the circumstances of the case. When the order was made, the position was this. The Plaintiff was saying that the machinery, which it had attached, belonged to the Defendant and were, therefore, liable to meet its claim against the latter. The claimants were saying no, as the machinery belonged to them. Pending the decision of this dispute, the claimants obtained a release of the machinery from the attachment upon depositing the moneys to safeguard the Plaintiff. But safeguard against what? Obviously against any risk arising from the removal of the attachment, that is to say, in case it appeared later at the hearing of the claim proceedings that the machinery belonged to the Defendant and were liable to be attached. This risk was only the risk of the Plaintiff''s claim under the decree against the Defendant not being satisfied. The claim of the Plaintiff, therefore, which was meant to be secured by the deposit was its claim against the Defendant and not any claim for costs against the claimants. Indeed, no claim for such costs had then arisen or been made. Neither had the attachment been levied in respect of such costs. No risk as to such costs could have arisen from the removal of the attachment. In fact, the attachment was in respect of a claim against the Defendant and not against the claimants. The deposit being meant to be a security against the results of the removal of the attachment was not a security for any claim of the Plaintiff for costs against the claimants. On this ground alone, I think, the application should fail.

There seems to be another objection to this application. In my view, the decree in the Hooghly suit set aside the order for costs made against the claimants in the claim proceedings, so that there are now no costs which the Plaintiff is entitled to get from the claimants. That suit, as I have said, was brought under Order XXI, Rule 63 of the Code of Civil Procedure. That rule provides that the order made in claim proceedings under Order XXI, Rule 58 of the Code, is subject to the result of a suit brought under it. In my view, this means that, if in the suit a contrary decision is arrived at, the order made under Rule 58 disappears altogether, that is to say, both as to the substantive decision and the decision as to costs. There is no question that, in such circumstances, the substantive decision under Rule 58 goes. Otherwise, the decision under Rule 58 would not be subject to the decision in the suit under Rule 63 at all. I find it impossible to say that, if the substantive portion of the order goes, the consequential portion, namely, that relating to costs, should not go as well. Rule 63 makes the order under Rule 58 subject to the result of the suit and if it is so subject, it must be subject as a whole and in its entirety.

An almost similar case is that of Clintamon Ramjipant Gharpure v. Govind Vithal Kane AIR (1938) Nag. 376. There the claimants had failed in the proceedings under Order XXI, Rule 58 and had been directed to pay the costs thereof. The claimants subsequently brought a suit under Order XXI, Rule 63 and in this suit they succeeded. Notwithstanding this, the attaching creditor proceeded to execute against the claimants the order for costs made in his favour in the proceedings under Rule 58. Niyogi J. held that he was not entitled to do so. He put his decision on two grounds. First, he said that the decree in the suit under Rule 63 set aside the decision under Rule 58 wholly and for this part of his reasoning he relied on Phul Kumari v. Ghanshyam Misra (1907) ILR 35 Cal. 202 (206) : L.B. 35 I.A. 22 (25). Secondly, he said:

If it is supposed that the decree did not affect the order passed in miscellaneous proceedings as to costs, then one is led to the anomalous result that, while the property which was attached was held not liable to attachment and sale and the objector succeeded in his objection he would, nevertheless, be saddled with the costs of a proceeding which the decree-holder had no right to initiate.

With both these reasonings I respectfully agree except that I would have finished the sentence quoted with the words "which "the decree holder had no right to contest".

Phul Kumari''s case throws a great deal of light on the subject in hand. The question that arose in that case was as to the court-fee stamp payable on a plaint filed u/s 283 of the CPC of 1882, which corresponds to Order XXI, Rule 63 of the present Code and is in identical terms. The Judicial Committee held that, that was a suit to alter or set aside a summary decision of a civil court. See Barjor Dorabji Randelia v. Calcutta Chemical Co. Ltd. (1939) 43 C.W.N. 609, 610. They held that--

Section 283 of the Code of Civil Procedure, under which section the action is brought, recognizes such a suit as not merely an appropriate but the only mode of obtaining review in such cases

and that the suit was "simply a form of appeal."

In this Court, the view that has uniformly obtained has been that the decision of a suit under Rule 63 sets aside the order under Rule 58 to such an extent that, even the order, releasing the property from attachment made on a claim under that rule succeeding, is deemed to be set aside on the decree-holder succeeding in the suit under Rule 63. This was the view expressed by Sir Richard Couch C.J. in Mahomed Warris v. Pitambur Sen (1874) 21 W.R. 435, which was decided under the CPC prevailing in 1874, which contained a provision substantially similar to Order XXI, Rule 63 of the present Code. Sir Richard Couch said:

A suit was brought and the Plaintiff obtained a decree establishing his right namely, a right to attach the property showing that the order for the release of the property from attachment was improper. The effect of that decree must be to revive the attachment, or rather not to revive the attachment, but to set aside the order of release which had been made and therefore to make the property still subject to the attachment, to restore the state of things that had been disturbed by the order of release.

This case has been followed in a number of cases, amongst which are Protap Chandra Gope v. Sarat Chandra Gangopadhyaya (1920) 25 C.W.N. 544 and Haranchandra Chakraavarti v. Joy Chand ILR 57 (1929) Cal. 122. If the effect of the decree in a suit under Rule 63 may be to set aside the order releasing property from attachment why would not such a decree also set aside the order for costs under Rule 58?

If the suit under Rule 63 is by way of an appeal or review of the order made in the summary proceedings under Rule 58, I am unable to see how the decree made in the suit can be said to leave untouched the provision in the order made on the summary proceedings relating to costs. In my view, therefore, both as a matter of construction of Rule 63 and on authorities, such a decree wipes out, if it is in variance with the order made on the summary proceedings, that order and that order as a whole.

It was argued on behalf of the Applicant that the case is similar to one where in a suit the Plaintiff applies for a judgment on admission in which he fails and is made liable to pay the costs of the application. It was said that, in such a case, even though the Plaintiff eventually succeeds in the suit, he still remains liable to pay the costs of the abortive application for judgment on admission. I am unable to see the similarity between the two cases. It cannot be said that, in the case of an application for judgment on admission, the suit is, in any sense, an appeal or a review from the order on the application. The decree in such a suit is never meant to set aside the order on the application and in fact does not affect it in any way. A suit under Rule 63, being essentially in the nature of an appeal from the order made in the summary proceedings and operating to set aside that order, the position in this case would be wholly different.

Then it is argued that the claimants should be made to pay the costs of the unsuccessful claim proceedings because, though they may really be entitled to the right which they claim, a right which they subsequently establish in the suit, still the remedy followed by them, namely, the, summary proceedings, was wrong. In other words, in spite of their success in the suit, they remain liable for the costs of the summary proceedings, because they should not have proceeded that way. I am not sure that this is the correct point of view, for it would mean that a claimant having an indubitable right should not proceed under Order XXI, Rule 58, unless he is prepared to take the risk of the costs of the proceedings under that rule. In any event, the question is one of construction of Rule 63 and I have stated that the decision of the suit under that, rule reverses the contrary decision under Rule 58. If the order on the summary proceeding go, it becomes irrelevant to enquire whether the summary proceeding was a wrong remedy to have been followed.

For these reasons, I would dismiss the application with costs. Certified for counsel.