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Judgment
The unsuccessful claimants filed the present appeal against the judgment and decree dated 26-8-1998 passed by the learned Additional Special Judge for SPE and ACB Cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad, in E.A.No. 10 of 1994 in EPNo.13 of 1992.
The claimants are the husband and wife. The respondents I to 5 are the plaintiffs and respondents 6 and 7 are the defendants in the suit CS No.175 of 1986 on the file of the High Court of Madras. Respondent No.7 is the Managing Partner of the sixth respondent firm. In execution of the decree obtained in CS No.175 of 1986 for realisation of the decretal amount, respondents 1 to 5 filed EP No. 13 of 1992. The appellants who are the third party claimants filed the claim petition in EA No. 10 of 1994 mentioning inter alia that they purchased the petition schedule mentioned house (for short ''the suit house'') which is the subject matter of attachment for sale in E.P.No. 13 of 1992 under an agreement of sale dated 24-7-1985 for a valid consideration of Rs.7,00,000/- executed by the 7th respondent and his son by name Ramalinga Varma who are the owners thereof having purchased the same under a registered sale deed dated 26-11-1973 from the original owner. For discharging a loan of the Life Insurance Corporation respondent No. 7 and his son agreed to sell the suit house in favour of the appellants. The appellants paid the entire sale consideration on 24-7-1985. In part performance of that agreement of sale, the appellants have been put in possession of the suit house. The sale deed was executed subsequently on 4-4-1986 and the same was registered on 19-1-1993, although it was presented on the same date of its execution. Thus, the appellants are the bona fide purchasers.
The respondents 1 to 5 resisted the claim of the appellants by filing their counter mentioning inter alia that the appellants being the friends and relatives of the 7th respondent in collusion with him filed the present claim petition so as to avoid the decree debt, after having brought into existence the so-called agreement of sale. The sale deed said to have been executed by the respondent No.7 and his son in favour of the appellants is, therefore, void ab initio, having been hit by Sections 52 and 53 of the Transfer of Property Act. It is a collusive and nominal document, and therefore, it cannot affect the rights of the decree holders. Respondents 6 and 7 have not chosen to file any counter, although they have put in their appearance through their Counsel.
At the time of the enquiry, the first appellant examined himself as PW1 and got Exs.A1 to A7 marked on his side. One witness was examined on the side of the respondents 1 to 5 and the documents Exs.B1 and C1 were got marked.
Upon considering the evidence on record, the Court below has come to the conclusion that the claim is false and the relevant documents have been created for the purpose of the claim. It has been further held that the claim is barred by limitation.
Aggrieved by the said judgment, the appellants as aforesaid filed the present appeal.
The learned Counsel appearing for the appellants has contended that the appellants having been found to be in possession of the suit house on the date when the attachment was effected, although the entire sale consideration has not been proved to have been passed, the proof of payment of consideration under Exs.A2 and A5 would establish that the appellants are the bona fide purchasers of the suit house. The learned Counsel has further contended that the period of limitation should be reckoned not from the date of order of attachment, but from the date on which actual threat to bring the schedule property to sale by filing the execution petition.
The learned Counsel for the respondents 1 to 5 on the other hand has contended that the appellants have failed to prove the payment of entire consideration as recited in the sale deed. The learned Counsel has further contended that the proofof payment of consideration is at variance with the pleading, and therefore, that cannot be accepted. The learned Counsel has further contended that the starting point of limitation is the date on which the attachment order has been effected.
In view of the above contentions, the points that arise for my determination in this appeal are:
(1) Whether the appellants are bona fide purchasers of the suit house for consideration?
(2) Whether ExAl sale deed is a sham and nominal document?
(3) Whether Ex. Al sale deed is void in view of the provisions of Section 64 of the Civil Procedure Code?
(4) Whether the claim petition is barred by limitation?
The facts which are not in dispute may be set-forth for brevity and better understanding of the matter.
The schedule property was purchased by the 7th respondent herein under Ex.A4 sale deed dated 26-11-1973. On the same day he borrowed a loan of Rs.60,000/-from the Life Insurance Corporation of India and in security thereof for due realisation of the said debt he mortgaged the schedule property under Ex.A2 mortgage bond dated 26-11-1973. 6th respondent is a firm doing business in motion pictures and the 7th respondent is the managing partner thereof. 7th respondent in the 1st week of December, 1981 borrowed an amount of Rs.2,15,000/- from the respondents 1 to 5 herein which are the financiers. In realisation of that debt respondents 1 to 5 herein filed a suit in CS No. 175 of 1986 before the High Court of Madras on its original side. They also filed along with the suit a petition in IANo.1632 of 1986 seeking attachment before judgment and obtained an order of attachment on 1-4-1986,. The attachment was effected on 28-5-1986, ultimately the suit in CS No.175 of 1986 was decreed for a sum of Rs. 5,64,217-38 Ps. exports as the 6(h and 7th respondents herein who are the defendants therein remained ex parte. The decree in CS No. 175 of 1986 was got transferred to the City Civil Court, Hyderabad, by the respondents 1 to 5. EPNo.13 of 1992 was filed for realisation of the decree debt by bringing the suit property to sale. The claim petition in HA No.10 of 1994 was filed by the appellants for raising attachment. It is in this back drop the claim of the claimants-appellants is got to be adjudicated upon.
While it is the case of the appellants that for discharging the debt of the Life Insurance Corporation and other debts, 7th respondent and his son after having received the sale consideration of Rs.7,00,000/- sold the suit house in their favour; it is the case of the respondents 1 to 5 that to avoid their decree debt respondents 6 and 7 in collusion with the appellanls have brought into existence the sale deed, and the said sale deed is sham and nominal document. The oral evidence adduced on the point in order to establish the claim is (he sole testimony of the first appellant. Of all the documents adduced, Exs. A2 and A5 are germane for consideration. On the point of payment of consideration, Ex.A2 is the registered mortgage bond dated 26-11-1973 executed by the 7th respondent in favour of the Life Insurance Corporation of India containing the endorsement of discharge.
Ex. A5 is the certificate dated 21-11-1995 issued by the Vijaya Bank, in proof of a cheque having been issued from the account of M/s. P.V.Raj and Company bearing No.35 to Sri M.A. Raj. These two documents are got to be appreciated with reference to the pleadings and other evidence that has been adduced on the point. It is specifically averred in the claim petition that the appellants paid the entire consideration of Rs. 7,00,000/- to the 7th respondent and his son on 24-7-1985, upon which they executed an agreement of sale. It has also been specifically recited in Ex.A1 sale deed that for discharge of the mortgage debt of L1C dated 26-11-1973 and all other debts to the tune of Rs. 5,00,000/- the vendors agreed to sell the schedule house for Rs. 7,00,0007-and the vendees paid the entire consideration of Rs. 7,00,000/- on 24-7-1985. It is obvious from the recitals in the document as well as the averments in the claim petition that the whole consideration was said to have been paid on 24-7-1985. But in the evidence of PI the 1st appellant he deposed on oath that he paid the entire sale consideration of Rs.7,00,0007- to the 7th respondent by 24-7-1985. Having deposed so in the beginning, at a later stage of his evidence he stated that on 19-8-1985 he discharged the LIC loan of Rs. 60,0007- and the Corporation returned Ex.A2 registered mortgage bond after having made an endorsement in token thereof on the bond itself. He further stated that he paid the sale consideration of Rs.7,00,000/- by way of draft cheques to the 7th respondent and his son and filed Ex.A5 certificate dated 21-11-1985 issued by Vijaya Bank, Vijayanagar Colony, Hyderabad, in proof of payment of part consideration. This evidence of PWI is at variance with the specific plea taken by him in the claim petition and the recital contained in Ex.Al sale deed. Any amount of evidence which is at variance wilh the pleading cannot be taken into consideration. Even otherwise, a perusal of the discharge endorsement on Ex.A2 shows that the principal amount of Rs.60,000/- with accrued interest due upto 19th August, 1985 was paid and the debt was discharged. This discharge endorsement was dated 30th October, 1985. It is not known who paid that amount. At any rate, it is not specific that PW1 has paid that amount. Obviously, the debt was discharged far subsequent to the agreement of sale dated 24-7-1985. Nothing has been spoken to about the accrued interest on the principal sum of Rs.60,0007- by PWI. The rate of interest stipulated in the bond is 9 1/2% per annum. At that rate the accrued interest from 26-11-1973 to 19-8-1985 would certainly be a sizable amount. Had PW1 really paid that amount as claimed by him, he would have paid not only the principal amount of Rs.60,000/-. but also the accrued interest. This glaring discrepancy has not been explained by PW1 in his evidence. Since nothing can be culled out from this document to show that PW1 himself paid that amount and had taken return of the document and as it is at variance with the specific plea taken by him in the claim petition and the specific recital in Ex.Al sale deed being relied upon by him, this evidence cannot be taken into consideration.
As regards Ex.A5 certificate, a perusal of this document shows a cheque bearing No.442840 dated 24-7-1985 has been issued from the CA/c.No. 35 of P.V.Raj & Co, to Sri M.A.Raj as per the bank records. Nothing has been mentioned in this document in regard to the amount covered by the cheque. PWl admitted in his cross-examination that he and his son had purchased the suit house under Ex.Al with his own money and the firm M/s. P.V.Raj & Co. had nothing to do with the said purchase. But Ex.A5 is in contradistinction to the said admission. It is appropriate here to consider the answers given by PWl in the cross-examination by extracting the same hereunder, thus.-
"I paid part of the sale consideration towards LIC loan obtained by respondent 7 and part of the amount was paid by way of cheques. I cannot say how many cheques were issued by me to respondent 7. I cannot say what was the exact cash amount was paid to respondent 7 and his son. I cannot remember what was the amount paid to respondent 7 and his son through cheques. 1 paid the entire sale consideration of Rs.7,00,000/- to respondent 7 and his son within a period of one month."
From the above excerpt what is obvious is that the entire sale consideration has not been paid on the date of the execution of the alleged sate agreement. What is said to have been paid under a cheque dated 24-7-1985 is not the whole consideration, but a part thereof. Given the fact that the cheque dated 24-7-1985 emanated from the account of M/s. P.V.Raj and Co., and it did not cover the whole of the balance of sale consideration and in view of the admissions made by PWl that the firm P.V.Raj & Co, has nothing to do wilh the sale, this proof which is at variance with the specific plea taken by the appellants in their claim petition as well as the specific recitals in regard thereto under Ex.Al cannot, therefore, be accepted. It is obvious, thus Exs. A2 and AS documents are now sought to be connected to the sale transaction under the agreement of sale dated 24-7-1985 by pressing them into service, but the theory appears to be quite artificial. For the above reasons, Exs. A2 and A5 are to be eschewed from consideration.
Dehors Exs. A2 and A5, no other documentary evidence has been adduced in proof of passing of consideration. Ex.A1 sale deed was evidently executed on 4-4-1986, of course, according to the appellants pursuant to the terms embodied in the contract of sale. But the crucial document viz., the sale agreement is not before the Court. The claim of PWl that the document has been misplaced cannot be accepted without any pinch of salt. Inasmuch as the sale deed in this case was executed on 4-4-1986 till which time it is legitimate to consider that the sale agreement must have been in existence and the attachment in this case was effected on 28-5-1986, the period interregnum being hardly 25 days and in view of the attachment of the suit property it is legitimate to expect that one would have taken alt possible care to preserve the document; the explanation coming forth to the contra from the mouth of PW1 at a belated stage in my considered view is not at all plausible, nor convincing. It does not therefore, inspire any confidence of the Court.
Admittedly, PW1 is an income tax assessee. According to his own admission, he has been submitting wealth tax returns. PW1 has admitted that he has been maintaining accounts and filing the income tax returns. The considerations said to have been passed under the alleged agreement of sale is obviously a huge amount of Rs.7,00,000/- and must, therefore, invariably find a place in the accounts. Notwithstanding the fact that the burden lies on a particular person to adduce evidence in order to establish a fact, the person who is in possession of the best evidence, shall produce the same. This is in accordance with the ''best evidence rule''. The burden in this case squarely rests on the appellants who are the claimants particularly in the wake of the plea that, they are the bona fide purchasers for consideration, qua the plea of respondents 1 to 5 that Ex.Al sale deed is a nominal and sham document. But, here is a case where despite the notice under Ex.Cl issued by the adversary to cause production of the accounts and also the income tax returns PW1 failed to produce the same. The explanation that the documents have been misplaced is quite unconvincing. He could have obtained the certified copies of the returns and filed into Court, if necessary. It is a fair case, therefore, an adverse inference has to be drawn under Illustration (g) of Section 114 of the Indian Evidence Act. The appellants have thus failed to prove that consideration has been passed under Ex.A1 sale deed.
Apart from the want of proof positive, let us consider here the surrounding circumstances and the probabilities innate and emerging from the record. PW1 claims to have been put in possession of the suit house pursuant to the agreement of sale and in part performance thereof. Except the word of mouth of PW1 no cogent evidence has been adduced. His evidence is that on 28-5-1986 when the Bailiff of the Court came to effect the attachment order he represented before him that he purchased the suit house and taken possession of the same, and accordingly a panchanama was drafted thereby the Bailiff. No evidence has been adduced to buttress the same except the ipse dixit of PW1. The learned Counsel for the appellants saught to rely upon a xerox copy of the panchanama said to have been drafted on 28-5-J986 filed before this Court in a book form containing the material papers. I am afraid that I cannot consider the same. No evidence which has not been brought on record can be considered. It is a case where the Bailiff ought to have been examined and the so-called panchanama either original or the certified copy thereof ought to have been filed in proof of the said claim that PW1 was found to be in possession of the suit house on 28-5-1986. As admitted by Pwl the suit property still stands in the name of the judgment debtor. Not taking steps for mutation of his name pursuant to Ex.Al sale deed cannot be brushed aside as of little consequence. Even assuming for a moment that the appellants were found to be in possession of the suit house on 28-5-1986 when the Bailiff visited the same that solitary and isolated circumstance divorced from the other surrounding circumstances and probabilities cannot alone tilt the scales.
There has been no iota of evidence to show the subsequent enjoyment of the suit house by paying municipal taxes, water charges and electricity revenue which would lend any amount of support to the plea of possession over the suit house. Although subsequent conduct is not germane for consideration, but in my view in the circumstances of this case lends assurance to the claim of the appellants that they have been inducted into possession of the suit house pursuant to the sale agreement. It may be reiterated here that the alleged sale agreement was on 24-7-1985. The possession and enjoyment of the suit house since then atleast till 28-5-1986 on which date the attachment was effected should have been shown. Absence of any evidence in proof of possession of the suit house certainly militates against the claim of the appellants that they have been put in possession of the suit house in part performance of the sale, agreement.
The appellants pleaded that in order to discharge the LIC loan the 7th respondent and his son sold away the suit house. Ex.A1 sale deed, however, recites that to discharge the mortgage debt of LIC and other debts to the tune of Rs.5,00,000/-the suit house has been offered for sale. The mortgage debt is only to the extent of Rs.60,000/-. The details in regard to the other debts and as to whether they are secured or unsecured are not known. Ex.A3 encumbrance certificate shows that search has been conducted upto 27-6-1980 and the document has been issued mentioning inter alia that except Ex.A2 mortgage debt there have been no other encumbrances over the suit house. The debts contracted, if any, after 27-6-1980 obviously cannot find a place in that document. There is no iota of evidence in this regard to show that the other debts of PW1 have been discharged. Being a purchaser, the appellant should take all precautions to see that those debts are discharged. Absence of any details in regard thereto naturally excites suspicion. The way in which PW1 eluded to give answers to the questions put to him in the cross-examination while seeking to establish the close relationship between him and the 7th respondent judgment debtor herein, suggests in a way the propinquity of his relationship with the judgment debtor. These surrounding circumstances and improbabilities which are inherent and innate loomlarge from the evidence on record and would certainly militate against the claim of the appellants that they are the bona fide purchasers of the suit house for consideration. For the foregoing reasons, the scanty evidence which is at variance with the plea cannot pursuade the Court to come to a legitimate conclusion, particularly, when the probabilities that are enumerated above militate against such a view that the appellants are the bona fide purchasers. This automatically strengthens the case of the respondents 1 to 5 that Ex. Al sale deed is a nominal document.
Although an attachment order was passed on 1-4-1986 and the sale deed came to be executed on 4-4-1986 per se it will not make the document void. The attachment comes into effect only on the date of its publication. The learned Counsel for the appellants placed reliance upon a Bench judgment of this Court in Venkata Subba Rao v. Krishnayya, AIR 1956 And 59, it has been held in that case as follows:
"To render a subsequent alienation invalid, an attachment before judgment, just like an attachment in execution, must be made in the manner prescribed by the Civil Procedure Code. It is only then that the attachment would operate as a valid prohibition against alienation. And by virtue of Order 38, Rule 7, an attachment of property before judgment has to be effected in the same manner as an attachment of property in execution. Hence, it is not sufficient to publish the order of attachment before judgment of immovable property in the terms of Apendix F, Form No.5, but the law requires that a prohibitory order must be made and published in the manner prescribed by Order 21 Rule 54. It is only then that the attachment before judgment can operate as a valid prohibition against alienation of the property sought to be attached. And when there is no such order and no such publication the mortgage is not void u/s 64."
The learned Counsel further relied upon a Judgment of the Apex Court in Hamda Ammal Vs. Avadiappa Pathar and Others, , that was a case where the sale deed was executed on 9-9-1970 and the property covered by the sale deed was attached before judgment on 17-9-1970 and the sale deed was registered on 26-10-1970. The Apex Court held that the fact that the document of sale has not been registered until after the attachment makes no difference. In view of Section 47 of the Registration Act, a registered document shall operate from which it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration. In the instant case, although the sale deed came to be executed on 4-4-1986, it was ultimately registered on 19-1-1993. The document was presented for registration admittedly on the date of its execution. In view of the judgments referred to supra of this Court as well as the Apex Court, Ex.Al sale deed cannot be concluded to be void as having been hit u/s 64 of the Civil Procedure Code.
Coming to the crucial point of bar of limitation, though the attachment was ordered on 1-4-1986, it was effected only on 28-5-1986, and the claim petition in this case was come to be filed on 14-7-1994, and thus more than seven years have been elapsed in between. The learned Counsel for the respondents 1 to 5 has submitted that the right to prefer a claim would accrue on the date of order of attachment i.e., 1-4-1986 and Article 137 of the Limitation Act, 1963 (for short ''the Act'') applies, and therefore, the claim is clearly time barred. In support of his above contention, the learned Counsel has sought to place reliance upon a judgment of the Kerala High Court in Avira Joseph v. Kara Abraham, 1988 (2) KLT 844. A single Judge of the Kerala High Court held that a claim preferred under Order 21, Rule 58 of the CPC (for short ''the Code'') is an application and no application can elude from the tentacles of Article 137 of the Act, and therefore, the right to prefer claim would accrue when the property was attached and the claim preferred after the expiry of three years therefrom prima facie barred by limitation. The learned Judge proceeded on the assumption that the claim petition preferred under Order 21, Rule 58 of the Code, in view of the Rule 324 of Kerala Civil Rules of Practice and Form No.55 under Appendix-E of the First Schedule of the Code, is to be treated as an application as defined u/s 2(a) and 2(b) of the Act. With due respect I am not being able to pursuade myself to concur with the same. The claim or objection can be preferred either after the attachment before judgment was effected or in the execution petition filed pursuant to the decree passed subsequent thereto in the suit. Order 38, Rule 8 of the Code envisages that a claim preferred in respect of the property attached before judgment shall be adjudicated upon in the manner provided for the adjudication of the claims to property attached in execution of a decree. Rule 11 of the said order says, once the property is attached before judment it shall not be necessary to apply for reattachment of the same in execution of the decree. Thus, a third party claimant has two options. Either he can prefer the claim after the attachment before judgment in the suit or he can prefer the claim later in the execution petition filed to bring the attached property for sale. Either way a claim has to be preferred only in accordance with the provisions contained in Rule 58 of Order 21 of the Code. Merely because a claimant failed to prefer the claim when the property was sought to be attached before judgment he is not precluded from preferring the claim in the execution petition filed to bring the altached property for sale. I am reinforced in my above view by a Bench Judgment of this Court reported in Allada Eswarappa and Another Vs. M. Krishna Reddy and Others, , this Court held as follows:
"Order 21, Rule 58 or Order 38, Rule 8 does not make it obligatory on the part of any person to prefer claims or objections to attachments. All that they contemplate is that if objections or claims are preferred, they have to be investigated and a decision given thereon; but the person claiming the property attached as his own is under no duty to invoke Order 38, Rule 8 CPC. If he so wishes, he can lay a claim to the property but his failure to do so does not entail the penalty contemplated by the principle underlying Section 11 Explanation IV CPC. The only effect of attaching the properly before judgment is that by reason of the attachment the decree holder can proceed against the property and if the person claiming the property as his own raises objections to it before the execution of the decree can proceed further, the same will have to be investigated and a decision given thereon."
What is obvious from the said judgment is that notwithstanding the fact that the attachment before judgment was effected some time back, perhaps more than a period of three years, the claimant is not precluded from preferring the claim in the execution petition filed subsequently to bring the attached property for sale. It is appropriate here to consider Rule 58 of Order 21 of the Code the relevant provision, and the same may be extracted hereunder for brevity and better understanding of the matter, thus.-
"Order 21, Rule 58:
Adjudication of claims to, or objections to attachment of, property:--(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 adjudicate upon the claim, or objection in accordance with the provisions herein contained:
Provided that no such claim or objection shall be entertained-
(a) Where, before the claim is preferred or objection is made, the property attached has already been sold; or
(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed;
(2) All questions (including questions relating, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this Rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.
(3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordance with such determination,--
(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or
(b) disallow the claim or objection; or
(c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or
(4) Where any claim or objection has been adjudicated upon under this Rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.
(5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such 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, order so refusing to entertain the claim or objection shall be conclusive."
According to clauses (a) and (b) of the proviso under sub-rule (1) no claim or objection shall be entertaind after the sale of the property attached or in the view of the Court, the claim or objection was designedly or unnecessarily delayed. It is obvious, therefore, that the claim petition or objection can be filed at any time before the property attached is sold in Court auction. The necessary corollary, therefore, is that the Court does not provide for any specific period of limitation. The Orissa High Court in fact in Padmalav Das v. Official Liquidator, Puri Bank Ltd., (under Liquidation), AIR 1971 Ori. 75, in Para 6 held as follows:
"It is true that Order 21, Rule 58 CPC does not provide for any specific period of limitation."
This Rule 58 has been drastically amended under Act 104 of 1976. Under the amended provisions, according to sub-rule (2) all questions (including questions relating to title or interest in the property attached) arising between the parties to a proceeding shall be determined by the Court dealing with the claim or objection and not by a separate suit. Earlier, as per the unamended provisions, a suit used to lie after the adjudication of the claim, either on merits or on the consideration, that the claim or objection was designedly or unnecessarily delayed. Rule 63 of the Code was the relevant Rule. But under the Amended Act Rules 60 to 63 have been repealed. In view of the mandatory provisions of sub-rule (2) of Rule 58, no suit is maintainable when once the claim is adjudicated upon. A suit can be maintained only when the claim is rejected under clause (b) of the proviso to sub-rule (1) on the consideration that it was designedly or unnecessarily delayed.
The Court while adjudicating the claim earlier under the unamended provisions should consider the possession of the claimant over the attached property alone. It was not competent to adjudicate the serious questions of right, title or interest over the property. That is the reason why a suit was envisaged. Now that in view of the amended provisions under sub-rule(2), since the Court is competent to adjudicate even the serious questions of right, title or interest over the property, a right of a suit is specifically excluded. Therefore, serious and substantial questions of right, title or interest to the property arising between the parties to the claim are expected to be adjudicated upon by the Court in the claim petition itself in accordance with Rule-58 of the Code. Under sub-rule(4) a right of appeal is provided against the order of adjudication made in accordance with the provisions of sub-rule(3) thereof. A legal fiction is created under the sub-rule(4) so as to maintain the appeal that the order of adjudication shall be deemed as if it were a decree. Although it is said that it is none the less a claim petition, for all practical purposes it is nothing but a suit and the order of adjudication shall be considered as a decree. The adjudication of claim petition earlier under the unamended provisions was of summary nature, inasmuch as possession on the date of judgment alone was the criterion to be considered. Now under the amended provisions serious questions of title over Ihe property in between the parties to the adjudication are involved, and therefore, it shall be tried as a regular suit. When substantial rights of parties are involved over the disputed properties, merely on the assumption that it is nevertheless a claim petition and on that premise if a period of limitation of three years is prescribed invoking residuary Article 137 of the Act, in my considered view it would result in serious ramifications. In the absence of Rule 58, a third party claimant would have in an ordinary course be in a position to lay the claim at any time provided of course, within that time when his right over the said property is extinguished in accordance with the principles enjoined u/s 27 of the Act and the relevant Articles mentioned in First Schedule in regard thereto.
Limitation Act has not envisaged any period of limitation for a claim petition to be filed as such. Article 98 of the Act provides for a period of limitation for a suit to he filed. The suit as contemplated by Article 98 is in accordance with the unamended provisions of Rule 58 of the Code, after the Amendment to Rule 58 under Act 104 of 1976 Article 98 of the Act has not been suitably amended. Be that as it may, Article 98 contemplates a period of limitation for a suit to be maintained. On the other hand, under clause (a) to the proviso under sub-rule (1) of the Code a claim petition can be filed at any stage before the sale of the property attached, which specifically excludes any period of limitation. Thus, we can see inherent harmony in between the provisions of the Code and the Act, perhaps that is the reason why the Parliament in its wisdom has not provided for any period of limitation for a claim petition to be filed. Now, that be the position, we cannot read something-which is expressly or by necessary implication has been excluded-into the provisions of Rule 58 of Order 21 of the Code or the provisions under the Act contrary to the very intention of the Legislature. Let us visualise a situation where, if for any reason the claim is not preferred when the property has been attached before judgment and in the process the period of more than three years is elapsed before the suit is culminated into a decree, the right of the third party claimant is totally barred and he cannot approach the Court when the decree is sought to be executed for realisation of money by bringing the property to sale. Nor he can file a suit claiming the property in view of the express bar in sub-rule (3) of Rule 58 of the Code. The substantial rights of the parties thus cannot be curtailed.
For the above reasons, I am of the considered view that no period of limitation is envisaged under the provisions of the Limitation Act and the amended provisions of Rule 58 of Order 21 of the Code, nay either expressly or by necessary implication clearly exclude any period of limitation and a third party claimant can maintain a claim at any stage before the property is brought to sale. Therefore, I respectfully disagree with the view of the Kerala High Court. The rival submissions of the learned Counsel appearing for both the parties in regard to the starting point of limitation as to whether it is from the date of attachment order or from the date when the attachment was effected or from the date when the threat is clearly discernible for bringing the property to sale are not germane for consideration as in my view Article i37 has no application.
In the result, in view of my findings on point. Nos. 1 and 2 the appeal fails and the appeal is, therefore, dismissed. Under the circumstances, there shall be no order as to costs.