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P L D 1970 Peshawar 194

 

Before Sardar Muhammad Iqbal and

 

Sher Bahadur Khan, JJ

 

Mst. SARDAR BEGUM‑Appellant

 

versus

 

Mst. SHERIN TAJA‑Respondent

 

Letters Patent Appeal No. 46 of 1966, decided on 22nd June 1970.

Sardar Akhtar Ali for Appellant.

 

Ashiq Hussain for Respondent.

 

Date of hearing: 6th June 1969.

 

JUDGMENT

 

SARDAR MUHAMMAD IQBAL, J.‑This Letters Patent Appeal is directed against the order dated the 1st July 1966 of the learned Single Judge whereby he by accepting the appeal of the respondent against the judgment and decree of the learned Additional District Judge restored the order dated the 20th July 1964 of the learned trial Judge, dismissing the suit of the appellant on the ground that it was barred under rule 63 of Order XXI of the Code of Civil Procedure.

 

2. The short background of the case is that in the execution of a decree for a sum of Rs. 1,000.00 obtained by Mst. Sherm Taja against Pir Mahi her husband, and Pir Muhammad her father, the house which is the subject‑matter of dispute in these proceedings was attached on the 2nd May 1959. The appellant filed objections under rule 58 of Order XXI that half of the house was not liable to attachment as she had become owner of the same by virtue of a registered gift deed dated the 19th March 1958, which was executed in her favour by Pir Muhammad, her, father. The application was dismissed in default on the 8th May 1959. She applied for an order to set the dismissal aside, and the Court made an order on the 6th January 1960, viz. “Counsel for the objector is present. He does not want to take any further proceedings in the petition which he had filed. He intends to file a declaratory suit or any other action which maybe available to him in law. The application, therefore, without further enquiry is consigned to the record room”. By an order of the sam” day the Court consigned of the record room the proceedings for execution, but directed that the attachment would continue to remain operative.

 

3. The decree‑holder again on the 13th December 1962, after a little less than three years from the time her application was consigned to record room, applied for attachment and sale of the house in dispute. The Court ordered the attachment of the property. The respondent‑decree‑holder, however, did not furnish necessary particulars for the issuance of the order of attachment, with the result that the case had to be adjourned for five times from 4th January 1963 to 6th September 1963 only to enable the decree‑holder to give the necessary particulars of the house. The warrant for attachment was consequently issued on the 6th September 1963. The appellant submitted her objection on the 24th September 1963 reiterating her earlier stand that she was the owner of half of house on the basis of a registered gift deed. The learned executing Court disallowed the objection on the ground that it was not competent in view of the earlier order of the Court dated the 6th January 1960. The appellant thereupon filed a suit on the 4th June 1964 for a declaration that she was the owner of half of the house which had been gifted away to her by her father through a registered deed dated the 19th March 1958. The suit was dismissed by the learned Civil Judge on the 20th July 1964 by observing that since the appellant had failed to file the suit within one year from 6th January 1960, the date on which her claim under rule 58 of Order XXI of the Code of Civil Procedure was dismissed, the, suit was barred under Article 11 of the Limitation Act. On appeal, the order was set aside by the learned Additional District Judge. The decree‑holder preferred an appeal and the learned Single Judge by accepting the same restored the order of the learned Civil Judge dismissing the suit of the appellant.

 

4. The learned Additional District Judge accepted the appeal by observing that the attachment of the house came to an end on the 6th January 1960 when the executing Court consigned to the record room the execution proceedings initiated by the decree‑holder. In respect of the direction of the executing Court that attachment would continue to remain operative, he held that the Court had no power to make such an order. .

 

The learned Additional District Judge, it appears, was oblivious of a local amendment in rule 57 of Order XXI of the Code, which, in the amended form, is in the following terms:–‑

 

“Where any property has been attached in execution of a decree but by reason of the decree‑holder’s default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a further date. In dismissing such application the Court shall direct whether the attachment shall continue or cease. In the absence of any such direction the attachment shall be deemed to cease.”

 

The learned Single Judge was, therefore, right in his judgment in setting aside the finding of the first appellate Court on this point.

 

5. Learned counsel for the appellant contended that it had been specifically asserted before the learned Single Judge that the period of limitation would not run against the appellant under Article 11 of the Limitation Act from the 6th January 1960; that it had to be counted from the 20th January 1963; that although he noted this point yet failed to adjudicate upon it, and that, therefore, it was competent for the appellant to canvass against his order and maintained that her suit vas not barred. Having perused the entire record of the case, we have no reasons to differ from the learned counsel on the point that the question was raised but had not been decided upon.

 

6. It is contended by the learned counsel that on the 6th January 1960, the simple question to be considered by the Court was whether or not the application made by the appellant for setting aside the order dated the 8th May 1959 whereby her appli cation under rule 58 of Order XXI was dismissed in default, should be granted. The counsel’s statement that he did not want to take any further proceedings was indubitably with reference to the application for restoration, and not the objections under rule 58 ibid, because there was no objection pending on that date which the Court could disallow. Since the application under rule 58 of Order XXI objecting to the attachment had been dis missed in default on the 8th May 1959 and until that order had been set aside the question of dealing with the objection did not arise, the only application which the Court could dispose of on the 6th January 1960 on the statement of the learned counsel was one for the restoration of the earlier application made under rule 58, Order XXI.

 

7. It was next contended that the order dated the 8th May 1959 dismissing the objection filed under the rule aforesaid for default of appearance of the objector being not on merits was not one disposed of under rule 58, Order XXI and, therefore, the period of limitation prescribed under Article 11 of the Limitation Act did not start running against her. The contention is unten able. In Cannanore Bank v. Madhavi (A I R 1942 Mad. 41) it was observed “Order XXI, rule 63 applies to all orders which are against claims preferred under rule 58. The test to see whether an order is under rule 63 is whether the order is against the claimant or the decree‑holder, but that does not mean that the order must involve an adjudication on the merits after investigation. If the petitioner has in fact asked to be allowed to withdraw the petition and the Court has acquiesced in the course, it may very well be that the order would not be an adverse order within the meaning of the rule, but it cannot be said that because a claimant says to the Court that he does not press the petition and consents to an order of dismissal it is not an adverse order.” It was further observed that where an order passed on a petition falls within rule 58 and the petitioner has not sought permission to withdraw it without prejudice to his rights it is obviously an order which is against him and requires him to file a suit within a year from the date of the order if he wishes to re open the matter. In order to bring a case within the purview of rule 63 of Order XXI, the question as to whether the claim under rule 62 of Order XXI was investigated or not is immaterial as held in Ambica Prosad v. Firm Soorajumull (A I R 1939 Cal. 620), and if an adverse order is made against the plaintiff in the claim proceeding he is bound to institute a suit under rule 63 of Order XXI failing which the order becomes conclusive and final. In Kishen Parshad v. Punjab National Bank Ltd., Amritsar (A I R 1927 Lah. 872) the view taken was that rule 63 renders the dismissal of the former objection to attachment, in default or on merits, a bar to the entertainment of a fresh objection. Sen, J., observed in Laxman Ganesh v. Ballram Lahanu (A I R 1948 Bom. 187) “that where the claim petition was not pressed and there was an order of dismissal, even if there is no investigation of the claim petition an adverse order against a claimant is conclusive unless a suit is brought by him to establish his claim within a year of the said order and that unless such a suit is brought, the party against whom the order is made cannot assert, either as plaintiff or as defendant in any other suit or as a _ party to any other proceedings, the right denied to him by the order” In the context it was observed that an order made on account of default of the defendant must be taken to mean the dismissal of the application and hence an order made under rule 63 of Order XXI. Thus, if a petition raising objection under rule 58 of Order XXI is dismissed for default, and although the order‑of dismissal is not made after investigation, the claimant in order to avoid its effect should file a suit under rule 63 of Order XXI, Code of Civil Procedure, within one year as required under Article 11 of the Limitation Act.

 

7. It was next contended by the learned counsel that the execution proceedings had been consigned to the record room on the 6th January 1960 and that the facts of the case clearly prove that the respondent had abandoned the attachment by her own conduct notwithstanding the direction of the Court that the attachment would remain operative. The Court had certainly consigned the execution proceedings to the record room on the 6th January 1960, but the attachment was kept in tact. The decree‑holder, however, took no steps to proceed against the property for its sale in pursuance of the attachment which had already been effected. She, instead of praying for further proceedings in .pursuance of the attachment, applied for fresh attachment. The attention of the Court was also pointedly drawn by the, office to the order dated the 6th January 1960 that the attachment had been kept alive, but notwithstanding the same an order for fresh attachment was made. If the respondent, as was contended before us, had inadvertently applied for fresh attachment, she should have retrieved the position after it was clearly pointed out by the office that the earlier attachment had been kept alive, and a request should have been made to the Court to continue the execution beyond the stage of attachment. This was not done. The Court ‑passed the order for attachment and the respondent acquiesced in the same, without any demur. The attachment of the house could not be effected till the 6th September 1963 for the reason that the respondent had failed to furnish the necessary particulars of the property so attached. In these circumstances, we can presume that the decree‑holder had abandoned the attachment and the same ceased to exist. The parties were, as a necessary consequence, put back in the same position as they were in before the execution proceedings were lodged, and the fact that the appellant failed to file a suit within a year of the dismissal in default of her claim will not operate as a bar for her raising the objection again. The Judicial Committee of the Privy Council observed in Puddomonee Dossee and another v. Roy Muthooranath Chowdhry and others ((1873) 20 Suth. W R 133) that “when a very long time has elapsed between the original execution and the date at which it was struck off, it should be presumed that the execution was abandoned and ceased to be operative, unless the circumstances are otherwise explained”. Same view was followed in Mst. Goonjessur Koonwar v. Luchmee Narain Singh and others‑((1873) 20 Suth. W R 418). The decree‑holder in the instant case not only did not take steps from the 6th January 1960 to the 13th December 1962 to proceed against the property in accordance with law, but herself applied for fresh attachment. The decree‑holder had herself abandoned the attachment and, therefore the applica tion made by her on the 13th of, December 1963 was a fresh application for attachment; and the appellant could, therefore, put in objection to the attachment even if she not filed the suit within a year of the dismissal in default of her earlier claim. In Chet Singh v. Gujar Singh (A I R 1931 Lah. 74) it was held that. “where, after an order disallowing a claimant’s claim and directing the attachment to continue, the attachment ceased within the period of one year from the date of the order, it is not incumbent upon the claimant to institute a suit under Order XXI, rule 63, Civil Procedure Code or to prosecute any such suit if he has already brought it and he will not be affected by any of the consequences which result from the failure to institute a suit under this rule.” Unnamalai Ammal v. Amba Baghya thammal and others (A.I R 1940 Mad. 763) was a case which arose out of proceedings by way of a claim to properties attached in execution of a decree. The decree which gave rise to the claim proceedings was a small cause decree in favour of the husband of the plaintiff and against defendant 2 who was the husband of defendant No. 1, the appellant. Execution proceedings were first taken by the plaintiff’s husband to attach the property which was claimed exclusively by defendant No. 1, wife of the judgment‑debtor, as her own, in virtue of a will. After the dismissal of the claim petition, the decree‑holder, i.e., the plaintiff’s husband, died and an order was passed by the execut ing Court: “Decree‑holder dead. Petition dismissed.” The question which arose for consideration was whether such an order had the effect of raising the attachment on the land claimed by defendant No. 1. The learned Judge observed that the parties themselves thought that it had that effect, for, after the death of her husband the plaintiff as his heir filed a fresh execution petition and applied for a fresh attachment. The executing Court thinking that there was no infirmity in the claim by reason of the prior proceedings, allowed the claim. After reviewing the case‑law on the subject, it was held by the Madras High Court that the claim of the defeated objector under the subsequent attachment was not barred by his failure to file a suit contesting the dismissal of his claim under the earlier attachment, which had ceased to exist owing to the order dismissing the execution petition. Same view, was expressed in Mst. Hidayat‑ul‑Nissa v. Jalal‑ud‑Din (A I R 1941 Oudh 95).

 

8. Needless to add here that the Law of Limitation is a procedural law and except for section 28 where under a person, by adverse possession, acquires a title in an immovable property, it does not extinguish a right, but only bars the remedy: Therefore, in a case where the remedy is barred but the right exists, the law should not be strictly interpreted against a person whose right is to be adversely affected. In the instant case the appellant claims to be the owner of half of the house by means of a registered gift deed. She is in possession of the property. Her failure to file a suit within the period of one year from the dismissal of her claim in default has not in any way extinguished her right to the property under section 28 of the Limitation Act. It was her remedy to challenge the order under rule 58 of Order XXI, C. P. C., which on the expiry of the period of limitation of one year as prescribed in Article 11, became barred. After the abandonment of the attachment of the house by the respondent‑decree‑holder, she had the house again attached and it furnished the appellant‑objector with another opportunity to reagitate her title in respect of half of the house.

 

9. The upshot of the above discussion is that the appeal is accepted, the judgment of the learned Single Judge is set aside and that of the learned Additional District Judge is restored. The parties are left to bear their own costs.

 

S. Q.

 

Appeal accepted.

 

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