Case: Sawai Singhai Nirmal Chand Vs. Union Of India

One Phool Chand, the predecessor-in-title of the appellant Sawai Singhai Nirmal Chand, instituted a suit against the respondent the Union of India, in the Court of the Second Additional District Judge, Jabalpur and obtained a decree on 25th April 1951 for Rs. 24,232-14-0 and proportionate costs with interest at 4% per annum. The respondent challenged the said decree by preferring an appeal in the High Court. Pending the appeal, the respondent deposited the decretal amount of Rs. 31,849-9-9. On December 14, 1952 Phool Chand withdrew Rs. 28,032-12-0 out of the said amount after furnishing due security in that behalf. Ultimately, the respondents appeal was partly allowed on June 26, 1954, and the decretal amount was reduced to Rs. 10, 971-13-6. In the result, the total decretal amount due to the decree-holder Phool Chand came to Rs. 12,691-13-6; and that meant that he had withdrawn Rs. 15,340-14-6 in excess of his legitimate dues.2. On September 4, 1954. the respondent applied for restitution of the said amount and claimed interest thereon. The Second Additional District Judge, Jabalpur, allowed the said application, and in execution of it, the respondent sought for the recovery of the said amount by attachment and sale of certain immovable properties of Phool Chand, mentioned in the application. These properties were accordingly ordered to be attached. But, meanwhile, they had been sold by Phool Chand to the appellant by a registered sale deed executed on January 9, 1953. That is why the appellant objected to the said attachment under O. 21 R. 58 of the Code, but his objection was overruled and his application was dismissed by the Second Additional District Judge on April 16, 1957. It is this order which has led to the present suit under O. 21 R. 63 of the Code.3. Before the appellant filed the present suit on June 23, 1958 in the Court of the First Additional District Judge, Jabalpur, he gave notice to the respondent under S. 80 of the Code on April 12, 1958. In the said suit, he claimed a declaration that the properties in question could not be attached and sold inasmuch as the title in respect of the said properties vested in him by virtue of a valid sale deed executed in his favour by Phool Chand. The appellant also claimed an injunction restraining the respondent from attaching and selling the said properties.4. In defence, the respondent raised a plea of limitation. It is common ground that the period of limitation prescribed for a suit under O. 21. R. 63 by Art. 11 of the Limitation Act is one year from the date of the order under O. 21 R. 58. The respondent urged that S. 80 of the Code did not apply to the present suit; and so, the period covered by the notice served by the appellant on the respondent could not be excluded for the purpose of calculating limitation in the present case. It is not disputed that if S. 80 applies to the present suit and the period covered by the notice can be taken into account, the suit is within time. It is also not disputed that if S. 80 does not apply to the present suit and the period of the notice cannot be taken into account, the suit is barred by time; and so at the preliminary stage, the only question which fell to be determined on the pleadings of the parties was whether S. 80 applies to the present suit. Both the learned trial Judge and the High Court of Madhya Pradesh, Jabalpur, have answered this question against the appellant, and the suit has, therefore, been dismissed as barred by time. It is against this decision that the appellant has come to this Court with a certificate granted by the said High Court.

Reasoning: 5. Let us begin by referring to the provisions of O. 21, Rules 58 and 63. O. 21, R. 58 deals with the investigation of claims to, and objections to attachment of, attached properties. It is under this rule that a person whose property is wrongfully attached in execution of a decree passed against another, is entitled to object to the said attachment. On such an application being made, a summary enquiry follows and the attachment is either raised or is not raised and the objection to attachment is allowed or is not allowed according as the Court trying the application is satisfied that the objector is or is not justified in objecting to the attachment. After the final order is passed one way or the other as a result of the investigation made in such proceedings, R. 63 comes into operation. It provides that 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. It is thus plain that where an order is passed in objection proceedings commencing with R. 58, it would be final subject to the result of the suit which a party aggrieved by such order may institute, and that means that if a party is aggrieved by an order passed in these proceedings, he can have the said order set aside or reversed by bringing a suit as provided by R. 63 itself and such a suit has to be filed within one year from the date of the impugnedon a fair and reasonable construction of S. 80, we do not see how it is possible to hold that a suit filed under O. 21, R. 63 can be taken out of the provisions of S. 80 of the Code. If we were to accede to the argument urged before us by Mr. Karkhanis for the respondent, we would, in substance, have to add certain words of exception in S. 80 itself, and that plainly is notthe argument that the present suit is outside the purview of S. 80 of the Code because it is a continuation of the attachment proceedings must be rejected.In this connection, we ought to bear in mind that the scope of the enquiry under O. 21, R. 58 is very limited and is confined to question of possession as therein indicated while suit brought under O 21. R. 63 would be concerned not only with the question of possession, but also with the question of title. Thus the scope of the suit is very different from and wider than that of the investigation under O. 21, R 58. In fact, it is the order made in the said investigation that is the cause of action of the suit under O. 21, R.63.Therefore, it would be impossible to hold that such a suit is outside the purview of S. 80 of the Code.It is significant that in a large majority of cases, the plea that the Government raises is that notice is necessary and it is generally contended that the notice being defective in one particular or another makes the suit incompetent, and in dealing with such pleas, the courts have naturally sought to interpret the notices somewhat liberally and have sometimes observed that in enforcing the provisions of S. 80, common sense and sense of propriety should determine the issue. It is very unusual for the Government to contend that in a suit brought against it, no notice is required under S 80. It is plain that such a plea has been raised by the respondent in the present case, because it helps the respondent to default the appellants claim on the ground of limitation. In any case, the contention based on the object or purpose of the notice can hardly assist us in interpreting the plain words of S. 80.14. Itappears that on this question, there has been a divergence of judicial opinion in India. But, in our opinion, the view that suits under O. 21, R. 63 did not attract the provisions of S. 80, is inconsistent with the plain, categorical and unambiguous words used by it.