[This, Second Appeal first came on for hearing on the 4th day of February 1918, before their Lordships Bakewell and Krishnan, JJ.]

Krishnan, J.

The facts necessary for this reference may be briefly stated as follow: The is defendant who is the appellant before us brought a suit for money against defendants 2 to 4 and when that suit was pending he obtained an order under R. 6, O. 38 of the Code of Civil Procedure for attachment before judgment and attached the plaint properties. The plaintiff intervened and claimed the properties as belonging to him by reason of a prior purchase from the same defendants. The claim was enquired into and as order was passed in March 1910 in plaintiffs favour disallowing the attachment. In 1912, 1st defendant obtained his decree for money against defendants Nos. 2 to 4 and he then proceeded again to attach the same properties. He had taken no steps to contest the order on the claim petition nor has he done so up to date. Nevertheless when plaintiff again filed a claim against the second attachment his claim was dismissed and the attachment was confirmed. For some reason not apparent the Court failed to consider the effect of the first order. Plaintiff has filed this suit under R. 63 of O. 21 of the Code of Civil Procedure for a declaration of his title and for setting aside the order of attachment.

Both the Lower Courts have decreed the plaintiffs suit without going into the merits on the ground that the order on the first claim petition was conclusive between the parties because that order had decided in favour of plaintiffs title and against the first defendants right to attach. In second appeal it is argued before us that as that order was passed on a claim to property attached before judgment it is of no force now and that it is not an order to which R. 63 applies or which need be set aside.

The appellants vakil has relied on the ruling in Ramanamma v. Bathula Kamaraju (5 L.W. 704) which certainly supports him. But on the other side our attention has been drawn to the decision in Second Appeal No. 601 of 1916, Muthukumara Chettiar v. Alagappd Chettiar where my learned brother Mr. Justice Spencer and I were of opinion that R. 63 did apply to cases of attachment before judgment. As there is a clear conflict between the two decisions on the point before us and as I still adhere to the view expressed by us in the Second Appeal, I consider that the question should be referred to the Full Bench.

As our attention was not drawn to the ruling in 5 Law Weekly when we were hearing the Second Appeal No. 601 of 1916 we then stated our reasons for our view only very briefly. It is necessary now to state my reasons more fully as, with all respect to my learned brothers who decided the case in 5 Law Weekly, I am unable to accept their view that R. 63 is inapplicable in cases of attachment before judgment.

The decision on the point turns upon the construction of R. 63 of O. 21 and on the meaning to be attached to the Word investigated in R. 8, O.

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8. The wording of R. 63 is clearly wide enough to include claims before decrees, for the rule speaks of claims and objections preferred without restricting them in any way to claims after decree. The change in the wording of that rule from what it was in the corresponding Sect. 283 of the Old Code of 1882, by omission of all reference to Sects. 280 to 282 seems to indicate that it was intended to widen the scope of the rule and to make it clearer that claims of all kinds were included in it. This is the view taken in Bisheshar Das v. Ambika Prasad (I.L.R., 37 All., 575) and I agree with it in spite of the dissent from it in the 5 Law Weekly case. As R. 63 is an enabling rule which gives a right of suit to parties defeated in claim proceedings which they will not otherwise have, I am inclined to think that we should not unduly restrict its scope. If the rule is held not to apply, the result seems to me to be that the original order becomes final without being subject to the result of a suit; I fail to see on what ground it can be treated as of no force as argued. It is an order between parties by competent Court deciding that a certain property can or cannot be attached for realising by sale the amount of the decree that may be passed and as such, it seems to me it is binding on the parties thereto unless set aside. Considering that the two sets of orders, those before and those after decree are passed after similar enquiries, no distinction should be made between them as to their effect unless the legislature has clearly indicated a distinction.

Such a distinction is sought to be made out by reference to the word investigated in R. 8 of O.,

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8. It is argued that the word refers only to the enquiry on the claim and nothing more, in other words only Rr. 58 and 59 of O. 21 apply. Now it will be seen that the heading of the Sub-Division of O. 21 where these rules are is Investigation of claims and objections and under this heading we have grouped all the rules from 58 to

63. It is a reasonable inference from this that the Legislature treated them all as steps in Investigation or parts of it. If we adopt a restricted meaning for the word investigated, Rr. 60 to 62 will not be included in it as they deal with orders to be passed after the Investigation proper is completed and as a result we will have to hold that the Legislature has not made any provision for orders to be passed in claims under that rule as there is no other provision with regard to it except R.

8. Such a construction seems to me to be hardly right. If we consider that the order in the present case was passed under R. 60, O. 21, read with R. 8 of O. 38, as I think we should, it follows that R. 63 applies to it as being an order under R. 60.

The restricted meaning is adopted in the 5 Law Weekly case as the learned Judges considered that it would be unfair and inexpedient to drive a plaintiff into a fresh litigation which might eventually turn out to be a futile-proceeding if he failed to secure a decree. It may be remarked that even in cases of attachments after decree, the suit under R.

63. may turn out to be futile if the first decree is reversed on Appeal or Second Appeal and plaintiffs suit is dismissed, and yet the Legislature has clearly given the right of suit. I can see nothing unfair in making a person sue if he wishes to insist on his right to attach a certain property in execution of his anticipated decree in spite of the adverse order against him in the claim. If his second suit turns cut to be futile because he fails to secure a decree, the fault is his own in bringing an unfounded suit in the first instance. It seems to me however these are not relevant considerations in deciding whether a suit lies under R. 63, nor can the wording of the Art. 11 of the Limitation Act be used to decide the question. If that article does not apply as to which I express no opinion it will be necessary to find what article does when the question arises.

A similar question as the one before us which arose in an attachment before judgment when the Code (Act VIII of 1859) was in force was considered by Sir Barnes Peacock, C. J. and Mr. Justice Matter; the learned Judges held on a construction of Sects. 86 and 246 of that Code which were the corresponding provisions then in force, that the words investigated in the same manner as a claim to property attached in execution of a decree incorporated all the provisions of Sect. 246 and gave the remedy by suit, which was the only and proper remedy, to contest the order on the claim. This was decided in 1868 and till the decision in 5 Law Weekly, no ruling has been cited to us to the contrary. I feel therefore fortified in my view that R. 63 does apply to claims before decrees as well. But on account of the conflict of authority in this Court the question must now be decided by the Full Bench.

I would submit the case for the opinion of the Full Bench on the following question:

Does R. 63 of O. 21, Civil Procedure Code, apply to orders on claims preferred to property attached before judgment

Bakewell, J.

I agree.

[1] Section 86 of the Code of Civil Procedure of 1859, which was re-enacted without material alteration in Section 487 of the Code of 1877 and in Order XXXVIII, Rule 8 of the present Code, admittedly had the effect of applying to claims in respect of attachments before judgment all the provisions of Section 246 of that Code including the final provision enabling the party against whom the order was given to bring a suit to establish his right at any time within one year from the date of the order. By the Indian Limitation Act IX of 1871 the provision as to limitation was taken out of Section 246 and dealt with in Article 15 of that Act. In the Code of 1877, Sections 278 to 283 were substituted for Section 246 of the Code of 1859. In Section 283 which corresponds to the last sentence of Section 246, the language was altered but there was nothing in the alteration from which an intention to make any of these provisions inapplicable to attachments before judgment could be inferred, nor is there anything of the sort in the changes made in the Code of 190

8. The general policy of the law is that questions of title raised by claims against attachments before or after judgment should be promptly disposed of, and, as has been pointed out to us, this section was applied without question to a case of attachment before judgment which came before the Privy Council in Kissorimohun Roy v. Harsukh Das (1889) I.L.R. 17 Cal. 136.

[2] We must overrule Ramanamma v. Bathula Kamaraju (1917) 5 Law Weekly 704. reported in I.L.R. 11 M. 23 and answer the question in the affirmative.