Machi Raju Venkataratnam vs Sri Rajah Vadrevu Ranganayakamma Zamindarini Garu and Others

John Wallis, C.J.—The general policy of these provisions of the Code, as explained by the Judicial Committee in (1888) ILR 15 521 (P.C.)

(Privy Council) is to secure the speedy settlement of questions of title raised at execution sales. Section 283 of the Codes of 1877 and 1882 only

gave a right of suit to the party against whom an order had been passed under Sections 280, 281 or 282, and did not provide for the case where

the Court u/s 278 refused to investigate the claim on the ground that it had been designedly or unnecessarily delayed. In such cases, Section 283

failed to provide for the speedy settlement of the questions of title raised by the claim. The legislature would appear to have intended to supply this

omission when in Rule 63 of Order XXI of the present Code it conferred the right of suit in general terms "" where a claim or an objection is

preferred "" upon "" the party against whom an order is made,"" instead of limiting it, as in Section 283, to cases in which an order had been passed

under Rules 60, 61 and 62(Ss. 280, 281 and 282 of the old Code). Where a claim or objection is preferred under Rule 58(formerly Section 278),

and the Court rejects it under the proviso to that Rule on the ground that it was designedly or unnecessarily delayed, the unsuccessful claimant or

objector in my opinion clearly comes within the words "" the party against whom the order is made."" Bule 63 does not speak of any party but of the

party against whom an order has been made, and assumes that, where a claim or objection is preferred u/s 58(Section 278), there must always be

a party against whom an order is made within the meaning of the Rule. I cannot agree with the suggestion in Napier, J.''s order of reference that the

change in the language of R 63 was due merely to the altered scheme of the Code. If no change had been intended, Br. 60, 61 and 62 would

simply have been substituted in B. 63 for Sections 280, 281 and 282 in the corresponding Section 283 cf the former Code. We are bound I think

to give effect to the clear intention of the legislature to widen the scope of the Rule in accordance with the general policy of this legislation as

explained by the highest tribunal. A claimaint who comes forward too late in the clay to entitle him to have His claim investigated having regard to

the proviso in B. 58, none the less raises a question of title with regard to the attached property; and there is nothing unfair in depriving him owing

to his laches of the chance of getting a provisional decision in his favour on his claim petition and requiring him to proceed to assert his title by suit

within the shorter period of limitation prescribed when questions of title are raised with regard to attached property. I accordingly agree with

Narasimha Chetty v. Vijiapala Nainar (1914) 2 L.W. 206 and Ponnusami Pillai Vs. Samu Ammal and Others, . As regards S.A. No. 1986 of

1916 the attention of the Court was not called in that case to the alteration in the language of B. 6a on which my opinion is based. Our answer to

the 1st question is that the case comes within the terms of Order 21, B. 63. As regards the second question, assuming, as-Sadasiva Aiyar, J.,

appears to hold in his order of reference, that the Zamindarini''s claim in E.A. No. 3307 of 1910 was not finally rejected by the order passed on it

on 23rd December 1910, we think that the subsequent order Exhibit V was an order made against the Zamindarini within the meaning of B. 63,

and was consequently an order covered by Article 11(1) of the Limitation Act of 1908. Though the order only was that the allegations of the

Zamindarini would be notified to bidders, we think it amounted, and was understood to amount, to a rejection of the claim on the ground that it

was filed too late.

Oldfield, J.

I agree.

Seshagiri Aiyar, J.

I entirely agree The language of Order 21, Rule 63, leaves little room for doubt that all orders which negative the rights set up by the claimant or

the decree-holder are within the rule. Prima facie the decree-holder attaches or gets attached the property in dispute as that of the judgment-

debtor. The law compels him to give certain information to the Court before the proceedings, in attachment are taken. When this requirement is

satisfied unless a third party intervenes, the sale will be effected as if the property belonged to the judgment-debtor. When a claim is preferred the

usual prayer is that the attachment should be raised as the property does not belong to the judgment-debtor but belongs to the claimant. On the

presentation of such a petition if the order is not that the property be released from, attachment it must be taken to be an order against the claimant.

The practice of notifying claims to, intending bidders is not warranted by anything contained in the Code of Civil Procedure. It often leads to the

depreciation in value of the property to be sold and is not calculated to advance the right of the claimant in any way. Consequently it seems to me

that the procedure adopted by some of the Subordinate Courts of notifying objection by claimants at the time of the sale without expressing any

decision upon those objections should be discouraged. Although the practice is not a salutary one, I fail to see how this procedure can be

construed as not having the force of giving a decision against the claimant. His right to raise the attachment must be deemed to have been negatived

when the property was ordered to be sold without releasing it from attachment. Therefore, in my opinion, an order on a claim petition which

expresses no final judgment upon the right put forward but simply directs the sale after notifying the claim is an order against the claimant and he is

bound to institute a suit under Article 11 of the Limitation Act. The history of the legislation has been reviewed in the judgment of the learned Chief

Justice and I do not propose to deal with that question. I agree with the answers proposed.