(Prayer: Appeal (disposed of on 19-4-1945) under Cl. 15 of the Letters Patent against the decree of the High Court in S.A. No. 1639 of 1943 (Somayya, J.) preferred against the decree of the Court of the Subordinate Judge, Cuddalore, in A.S. No. 59 of 1942 preferred against the decree of the Court of the District Munsif, Cuddalore in O.S. No. 355 of 1939.)

The question in this appeal is whether an order passed dismissing an objection preferred to an attachment under O. 21, R. 58 of the Code of Civil Procedure, no suit having been filed under R. 63, operates beyond proceedings in execution of the particular decree.

On the 13th September 1919 Perianna Padayachi (the father of defendants 1 to 3), the fourth defendant and one Sengeni Padayachi executed a mortgage in favour of the plaintiff. Some of the mortgaged properties belonged to Perianna Padayachi, some to the fourth defendant and some to Sengeni Padayachi. On the 7th July 1939 the mortgagee sued to recover the amount then due on the mortgage. With interest it came to Rs. 1998. The properties owned by Sengeni Padayachi were sold in public auction by the revenue authorities for the recovery of land revenue and were purchased by the mortgagee, subject to his mortgage. Credit for the amount paid by the mortgagee for these properties was given to the mortgagors.

In O.S. No. 183 of 1932 of the Court of the District Munsif of Cuddalore the mortgagee obtained a decree on a mortgage of other property executed by the fourth defendant and Sengeni Padayachi. The hypotheca was sold, but the proceeds were not sufficient to pay in full the mortgagee, who was granted a personal decree for the balance. In execution of this decree the mortgagee attached as the separate property of the fourth defendant items 11 to 14 of the properties covered by the mortgage to the plaintiff of the 13th September 191

9. The fourth defendants brothers defendants 7 to 9, objected to the attachment. They said that these particular properties belonged to the joint family of which they and the fourth defendant were members. The objection prevailed, but the mortgagee did not file a suit under the provisions of O. 21, R. 63 of the Code of Civil Procedure to challenge this finding because he had obtained full satisfaction of the personal decree passed in O.S. No. 183 of 1932 out of the properties owned by Sengeni Padayachi. Consequently the attachment came to an end.

In the present suit defendants 7 to 9 again advanced the plea that items 11 to 14 belonged to their joint family, but the District Munsif held against them. He also held that the order passed on the objection raised by them in the execution proceedings arising out of the personal decree obtained in O.S. No. 183 of 1932 did not disentitle the mortgagee to a mortgage decree in respect of items 11 to

1

4. On appeal by defendants 7 to 9 the Subordinate Judge agreed with the District Munsif that items 11 to 14 belonged to the fourth defendant in his own right, but found that the District Munsif erred in holding that the claim order did not operate as a bar to the suit to this extent. The decision of the Subordinate Judge on this question was in accordance with the judgment of this Court in Singariah Chetti v. Chinnabbi (44 Mad. 268) [LQ/MadHC/1920/251] . The mortgagee then appealed to this Court, but the appeal was dismissed by Somayya, J. as he was also bound by the decision in Singariah Chetty v. Chinnabbi (44 Mad. 268) [LQ/MadHC/1920/251] . The learned Judge doubted, however, the correctness of the judgment in that case and he gave the plaintiff leave to appeal under Cl. 15 of the Letters Patent. Hence the present appeal.

Order 21, R. 58 says that where a claim is preferred or an objection is made to the attachment of a property attached in execution of a decree on the ground that the property is not liable to such attachment, the Court shall proceed to investigate the claim or objection. R. 63 says that a party aggrieved by the order passed in these proceedings may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of any such suit, the order shall be conclusi ve.

The provisions contained in these and the intermediate rules are confined to the claim or objection preferred to the particular attachment. In Singariah Chetty v. Chinnabbi (44 Mad. 268) [LQ/MadHC/1920/251] , Ayling and Odgers, JJ. held, however, that an order on a claim petition which has not been set aside in a suit by the claimant under O. 21, R. 63 becomes conclusive not only for the purpose of the execution of the decree in connection with which the claim was preferred, but also of the execution of other decrees between the same parties. That appeal arose out of a suit on a mortgage bond executed by the guardian of the first and second defendants in favour of the plaintiffs. The suit was O.S. No. 198 of 1916 of the District Munsifs Court, Tirupati. In O.S. No. 872 of 1913 the fifth defendant, who was there suing the first and second defendants, obtained an order for attachment before judgment. The plaintiffs objected to the attachment by reason of their mortgage, but their objection was overruled. Thereupon the plaintiffs filed O.S. No. 919 of 1914 for a declaration of their mortgage rights and for a further declaration that these were not affected by the attachment. This suit was dismissed without a decision on the merits. The plaintiffs were granted leave to withdraw it conditionally on payment of the costs of the defendants; but as they failed to pay the costs within the time allowed, a formal decree was passed dismissing it. The property which the plaintiffs claimed was not, however, sold as the result of the attachment before judgment which the fifth defendant had obtained in O.S. No. 872 of 1913. It was sold in execution of a decree which the fifth defendant had obtained against the first and second defendants in another suit O.S. No. 69 of 19

1

4. The purchasers at the Court auction were the third and fourth defendants. When the plaintiffs sued on their mortgage the third and fourth defendants pleaded that the dismissal of O.S. No. 919 of 1914 precluded the plaintiffs from suing on their mortgage, and this Court accepted the contention, holding that the word conclusive in O. 63 of O. 21, precluded them from reagitating their right to the mortgage in any other proceedings. The learned Judges considered Umesh Chunder Roy v. Raj Bullabh Sen (8 Cal. 279) a decision of the Calcutta High Court which was in conflict, but apparently they thought that it was distinguishable.

In Umesh Chunder Roy v. Raj Bullabh Sen (8 Cal. 279), in execution of a decree for arrears of rent the decree-holder attached a tenure belonging to the judgment-debtor, who pending the attachment, sold it. The purchaser applied for an order raising the attachment but the application was dismissed on the ground that the alienation had been made pending the attachment. The decree-holder did not, however, proceed with the execution proceedings because the amount due to him was paid by the judgment-debtor. Some years later the heirs and successors in title of the decree-holder obtained another decree for arrears of rent against the same defendant, and in execution thereof attached the same tenure. The purchaser objected, but his application was rejected. Thereupon he brought a suit to establish his right to the property and to confirm his possession. It was contended that the order dismissing his application when he applied for the release of the first attachment operated as res judicata . This was rejected on the ground that when the decree-holder was paid off he had no further claim and that the present suit arose out of a subsequent decree and a subsequent attachment. The effect of this judgment is that a summary order passed on a petition preferred under O. 21, R. 58, is only conclusive for the purposes of the proceedings in which it is given and if the attachment is raised it can be ignored. The Bombay High Court followed Umesh Chunder Roy v. Raj Bullabh Sen (8 Cal. 279), in Ibrahim Bai v. Kabula Bai (13 Bom. 72) [LQ/BomHC/1888/25] , as did the Lahore High Court in Udho Das v. Khair Mohamed (A.I.R. 1942 Lah. 192).

The decision in Singariah Chetti v. Chinnabbi (44 Mad. 268) [LQ/MadHC/1920/251] , has been criticised by this Court. The criticism is to be found in the judgment of Ramesam, J. sitting with Venkatasubba Rao, J. in Kumara Goundan v. Thevaraya Reddi (48 M.L.J. 616). Mr. Justice Ramesam was of the opinion that an order passed in a claim inquiry did not continue to be operative after the cessation of the attachment in a case where no suit was filed, but he thought that the filing of a suit under O. 21, R. 63, made all the difference.

We consider that the criticism of Singariah Chetti v. Chinnabbi (44 Mad. 268) [LQ/MadHC/1920/251] is well founded. As we have pointed out, R. 58 of O. 21, only applies to a claim preferred or an objection made to the order of attachment in the particular execution proceedings. The statement in R. 63 that an order passed on the claim or objection shall, subject to a suit, be conclusive must be read in conjunction with R. 58 which speaks of such attachment. We think that it would be unreasonable to hold that the intention of the Legislature was to make the order conclusive for all purposes inside a nd outside the particular execution proceedings. Of course, if the dismissal of the claim or objection resulted in the property being sold in execution, the title claimed by the objector would pass to the purchaser at the Court auction; but we are not considering a case of that nature. The Court is concerned merely with a case where the execution proceedings have not resulted in a sale. If the decision in Singariah Chetty v. Chinnabbi (44 Mad. 268) [LQ/MadHC/1920/251] were allowed to stand, it would mean that a person in the position of the plaintiff would not be able to enforce his mortgage, notwithstanding that the decree-holder who instituted the execution proceedings had been satisfied by the judgment-debtor by the payment of the decretal amount and the payment had resulted in the attachment being raised. It must be remembered that the mortgagees cause of action is on his mortgage, which is quite distinct from the cause of action leading to the execution proceedings.

In Velu Padayachi v. Arumugham Pillai (38 M.L.J. 397 = 11 L.W. 343), Sadasiva Ayyar, J. said, The auction purchaser is entitled to take advantage of the order against the claimant in such a case (if it is not set aside by a suit within one year) not because the purchaser is the representative of the decree-holder but because the order which established the right of the decree-holder to bring the property to sale against the claim of the claimant cannot be given effect to otherwise and was clearly intended by the legislature to have the effect of precluding the claimant from putting forward his claim again in opposition to the auction purchaser at the sale held in pursuance of the order against the claimant.

The learned Judges who decided Singariah Chetti v. Chinnabbi (44 Mad. 268) [LQ/MadHC/1920/251] considered the judgment of Sadasiva Ayyar, J. and were of the opinion that it applied to the case before them. We accept the observations of Sadasiva Ayyar, J. as embodying a correct statement of the law, but we are unable to agree that they support the decision in Singariah Chetti v. Chinnabbi (44 Mad. 268) [LQ/MadHC/1920/251] . The property mortgaged to the plaintiffs in that case was not sold in the execution proceedings which gave rise to the suit under O. 21, R. 63. The mortgaged property was sold in execution proceedings founded on a different decree obtained by the fifth defendant. The mortgagees were not parties to those proceedings. The purchasers at the Court auction, the third and fourth defendants, were not parties to the suit under O. 21, R. 63 and could not claim to be the representatives of the decree-holder. Therefore a plea of res judicata did not lie. For the reasons which we have given in the course of this judgment we are constrained to hold that Singariah Chetti v. Chinnabbi (44 Mad. 268) [LQ/MadHC/1920/251] was wrongly decided.

The opinion expressed by Ramesam, J. in Kumara Goundan v. Thevaraya Reddi (48 M.L.J. 616) that the filing of a suit under O. 21, R. 63 makes all the difference cannot be accepted without qualification. It is conclusive between the parties to the suit or their representatives so far as the execution of the particular decree is concerned; but where the property is sold in execution proceedings arising out of an entirely different decree the claimant will not be precluded from setting up his title as against a stranger purchaser. If the attachment has not led to the sale of the property all those concerned, even if there has been a suit under R. 63, will be left in the same position as they were before the attachment, except that the decree-holder will be at liberty to institute fresh proceedings in execution of the same decree without any right remaining in the claimant to reagitate his claim. Subject to the operation of the doctrine of res judicata in any particular case, we hold that an order on a claim petition filed under O. 21, R. 58 or a decree in a suit filed under R. 63 does not extend beyond the execution of the decree which has given rise to those proceedings.

The result is, the appeal will be allowed with costs in the Subordinate Court, in the second appeal and in this appeal. The case will have to be remanded to the Subordinate Court to hear and decide the further issues in the light of this judgment. The costs in the trial Court and of the further hearing in the Subordinate Court will be decided by the Subordinate Judge.

The appellant is entitled to the refund of the court-fee paid on the memorandum of appeal in the second appeal and to the refund of the court-fee paid on the memorandum of appeal in the appeal under the Letters Patent.