(Appeal (disposed of on 27-8-1942) against the order of the Court of the Subordinate Judge, Coconada dated the 13th day of March 1940 in E.P. No. 386 of 1939 in O.S. No. 58 of 1933.)

Happell, J.

The appellants in this Civil Miscellaneous Appeal obtained a decree in O.S. No. 58 of 1933 and in execution of that decree attached two items of moveable properties. In respect of these properties, the receiver to the estate of Pydah Venkatachalapathi filed two claim petitions, E.A. Nos. 945 and 1152 of 193

3. Both these petitions were dismissed with costs on the 5th March, 1934, and the receiver who is the respondent in this appeal paid their costs to the appellants. He, however, filed suits under O. 21, R. 63 of the Civil Procedure Code, O.S. Nos. 150 and 149 of 1934 to have the orders on the claim petitions set aside. These suits were decreed in his favour and appeals by the present appellants failed. The decrees in the suits which were confirmed by the appellate Court set aside the orders on the claim petitions and gave the respondent the declaration of title for which he prayed and the costs of the suits. No mention, however, was made in the decrees of the costs incurred in the claim petitions. The respondent, however, filed the petition, E.P. No. 386 of 1939, out of which this appeal arises for restitution of the costs paid by him to the appellants in obedience to the orders passed on the claim petitions. The learned Subordinate Judge of Cocanada allowed this petition. He observed that S. 144 of the Civil Procedure Code was not confined to cases where the orders are reversed only in further stages like appeal etc., but that it applies to any reversal. He observed also that the scheme of the provisions under O. 21, R. 58 and R. 63 is that when once a suit under O. 21, R. 63 succeeds, it must be taken automatically that the claim order is vacated. So viewed, the petitioner would be entitled to restitution the moment his suit succeeds.

It is argued for the appellants that the order of the learned Subordinate Judge is wrong since a suit under O. 21, R. 63 is a proceeding independent of the claim petition and, if successful, does not in substance set aside the order on the claim petition concerned, although in form the decree may be expressed to be that the order on the claim petition is set aside. O. 21, R. 63 reads:

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.

For the interpretation he puts on the order, learned Counsel for the appellant relies on a decision of Devadoss, J. sitting alone, reported in Raman Nair v. Raman Menon (20 L.W. 557). The suit with which the second appeal decided by Devadoss, J. was concerned had been brought under O. 21, R. 63 of the Civil Procedure Code and provided that the costs incurred by the plaintiff in the claim proceeding should be paid to him. Devadoss, J. allowed the appeal holding that a decree in a suit under O. 21, R. 63 could not provide for costs incurred in the claim petition for the reason that the suit contemplated by R. 63 is a suit for a declaration of the claimants right and the rule does no t say that the claim order will be vacated by reason of the judgment in the suit. It is true that O. 21, R. 63 does not provide expressly that the claim order shall be vacated by reason of the judgment in the suit but, with great respect that, in our opinion, is the effect of the order. A suit under O. 21, R. 63 is not brought without reference to the order on the claim petition and although what the rule states is that subject to the result of such suit, the order shall be conclusive, it is clear that, conversely, if the suit ends in favour of the party preferring it the order ceases to be conclusive. It is not therefore easy to see what is the difference between an order on a claim petition which ceases to be conclusive by virtue of the judgment in a suit brought under O. 21, R. 63 and an order which is set aside. This view, in our opinion, receives support from two decisions of the Privy Council. In Phul Kumari v. Ghanshyam Misra (35 Cal. 202 (P.C.) the question related to the court-fee payable by an unsuccessful claim petitioner on her suit under O. 21, R. 6

3. Their Lordships held that court-fee was payable under Art. 17 of Sch. II of the Court Fees Act which applies to a plaint or memorandum of appeal in each of the following suits:

(1) to alter or to set aside a summary decision or order of any of the Civil Courts not established by letters patent or any revenue Court,

and Lord Robertson who delivered the judgment of the Board observed that this was an exact description of the effect of the appellants suit. Moreover, in considering what provision of the Court Fees Act was applicable, their Lordships referred to the suit under O. 21, R. 63 which was the subject-matter of the appeal as such actions of appeal, and again later in the judgment observed that misled by the form of action directed by S. 283, (now O. 21, R. 63) both parties treated the action as if it were not simply a form of appeal, but as if it were unrelated to any decree forming the cause of action.

Again, in Nagendranath De v. Suresh Chandra De (60 Cal. 1 = 36 L.W. 7 (P.C.) where the questions related to the starting point of limitation and the meaning of the word appeal for the purposes of Art. 182(2) of the Limitation Act, their Lordships, observing that there was no definition of appeal in the Code of Civil Procedure, stated that they had no doubt that any application by a party to an appellate Court asking it to set aside or revise the decision of a subordinate Court is an appeal within the ordinary acceptation of the term.

We therefore can have no doubt that a suit brought under O. 21, R. 63 cannot be dissociated from the claim petition which gives rise to it and is in fact an action in the nature of an appeal from the order passed on the claim petition. S. 144 of the Civil Procedure Code provides that where and in so far as a decree is varied or reversed, the Court of First Instance shall cause such restitution to be made. The section does not provide that for an order of restitution to be made the decree must have been varied or reversed in any particular form of proceeding or by any particular Court, and the learned Subordinate Judge has rightly stated that S. 144 is not confined to cases where the orders are reversed on appeal [Vide Subbarayudu v. Yerram Setti Seshasani (40 Mad. 299 [LQ/MadHC/1916/18] = 3 L.W. 236)]. We are of opinion, therefore, that the orders passed on the claim petitions were reversed by the decrees in the suits, and that consequently, the respondent to this appeal was rightly held by the Subordinate Judge to be entitled to restitution of the costs of the claim petitions which he had paid to the appellants. The question of the costs in the claim petitions was not specifically raised in the suits under O. 21, R. 63, but the reversal of on order or decree automatically entitles the successful party to restitution of the costs paid to the unsuccessful party in the earlier proceeding. Different considerations would arise if the respondent petitioner had been seeking to recover his own costs since no issue on the question was raised in the suits and no provision was made for the payment of such costs in the decrees. The respondent, however, did not ask for his own costs.

It has also been urged for the appellants that the application for restitution was in any case barred by limitation since it was filed more than three years after the orders passed on the claim petitions. This contention, in our opinion, is not one that can be of any advantage to the appellants since it can only succeed if the suit under O. 21, R. 63 is an action quite distinct from the claim petitions so that an application for restitution of costs paid would in any event be disallowed. In the view that we hold of the nature of the suit under O. 21, R. 63 and its relation to the claim petitions, there can be no doubt that under Art. 182 of the Limitation Act, the starting point of limitation will be the date of the decree in the suit or if there is an appeal from that decree the date of the final orders on the appeal. In the result, therefore the appeal fails and is dismissed with costs.