Lachman Dass v. Mukand Dass — 1961 DIGILAW 323 (ALL)

JUDGMENT M. C. Desai, C. J. - The following question has been referred to us by our brother Beg: "In a case where property is attached before judgment under Or. XXXVIII, R. 6 of the Civil Procedure Code and a claim preferred by a third person to such property is dismissed prior to the passing of the decree in the suit, is a regular suit by such a person governed by Article 11 or by Article 120 of the Limitation Act ?" The material facts are that the property in dispute was attached under Or. XXXVIII, R. 6 in a suit brought by the appellants against the respondents and the latter objected to the attachment but the objection was dismissed on 29-5-35. Subsequently the suit was decreed in the appellants' favour on September 20, 1935. The effect of the decree was that the property in dispute continued to be under attachment and the respondents filed a suit to establish their claim to it in a court in Madras on 14-2-36 and it was dismissed on 31-7-1942. Thereafter on 17-1-45 they filed another suit giving rise to the instant appeal in the trial court for establishment of their claim to the property and the question arose whether it was barred by time or not. They maintained that the limitation was governed by the residuary Article 120 which allowed six years' period of limitation from the date on which their objection against attachment under Or. XXXVIII was dismissed and that they were entitled to the benefit of Section 14 of the Limitation Act and to deduct the time spent by them in prosecuting their suit in the Madras Court from 14-2-36 to 31-7-42. If the time spent by them in Madras was deducted and the limitation was governed by Article 120 which prescribes six years' period limitation, their suit was within time. We are not concerned in the case with the question whether they are entitled to the benefit of Section 14 and to exclude the time spent by them in the Madras court when computing the period of limitation; that question is not before us. The case of the appellants, on the other hand, was that the period of limitation was governed by Article 11 which prescribes the period of only one year from the date of the order passed under C.P.C. on " . . . . The case of the appellants, on the other hand, was that the period of limitation was governed by Article 11 which prescribes the period of only one year from the date of the order passed under C.P.C. on " . . . . an objection made to the attachment of property attached in execution of a decree......." and that as the period of one year had admittedly elapsed since the dismissal of their objection on 29-5-35, their suit was barred even if the period spent by them in prosecuting the suit in Madras was excluded when computing the period of limitation. It was in these circumstances that the abovementioned question has been referred by our learned brother to a larger Bench. 2. Article 11 relied upon by the appellants expressly provides for limitation for a suit to establish the right that the plaintiff clairris to the property comprised in a particular order, that order being on a particular objection, namely an objection made to the attachment of the property in execution of a decree. If there was no attachment in execution of a decree, there could not possibly be any objection to attachment, there could not possibly be an order passed on an objection to attachment and Article 11 would not apply. In the present case there was no attachment in execution of a decree. There was an attachment under Or. XXXVIII before judgment and though there was an objection to it, it was disposed of on 29-5-35 before any decree was passed in the suit. The attachment remained in force after the passing of the decree but there was no order for its sale. Had there been an order for sale it could be contended that its effect was to make the attachment one in execution of a decree. Further, not only was the objection filed before the decree was passed but also it was decided before it was passed and the order, that was passed before the passing of the decree, could not be deemed to be an order passed after the passing of it. Article 11, necessarily contemplates that the order disposing of the objection must be an order passed after the passing of the decree. Since the objection is to the attachment of the property in execution of the decree, the order disposing of the objection must necessarily be passed after the passing of the decree. Article 11, necessarily contemplates that the order disposing of the objection must be an order passed after the passing of the decree. Since the objection is to the attachment of the property in execution of the decree, the order disposing of the objection must necessarily be passed after the passing of the decree. The Article cannot apply to an order which was passed before the passing of the decree as in the present case, even if on account of certain subsequent events the property could be deemed to be under attachment in execution of it. There is no anomaly in a property being in attachment in execution of a decree in spite of an order dismissing an objection against the attachment being of a date prior to the passing of a decree. The essential condition prescribed in Article 11 that the suit must be one for establishing the right claimed to a property comprised in an order passed after the passing of a decree is not fulfilled in the present case and, therefore, Article 11 cannot apply. 3. But it was vehemently argued that under Or. XXXVIII, Rule 8 when a claim is preferred to a property attached before judgment it must "be investigated in the manner herein before provided for the investigation of claims to property attached in execution of a decree." Order XXI, Rule 57 to 63 are contained in Order XXI - Execution of Decrees and Orders,under the sub-head "Investigation of Claims and Objections" Rule 58 is to the effect that an objection to the attachment of any property in execution of a decree is to be investigated by the executing court as if the objector was a party to the suit. Rule 59 imposes an obligation upon the objector to show that he had some interest in, or was possessed of, the property attached on the date of the attachment, Rule 60 lays clown the circumstances in which the court should order the attached property to be released and Rule 61, the circumstances in which it should dismiss it. Rule 59 imposes an obligation upon the objector to show that he had some interest in, or was possessed of, the property attached on the date of the attachment, Rule 60 lays clown the circumstances in which the court should order the attached property to be released and Rule 61, the circumstances in which it should dismiss it. Rule 63 lays down that where 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." What has been contended before us is that all these provisions are to be read and applied when there is an objection to attachment before judgment. We cannot agree. Though all the provisions arc under the sub-head "Investigation of Claims and Objections" they are not expressly made applicable to an objection against attachment before judgment; what is made applicable is the manner provided in them for the "Investigation of claims of property attached in execution of a decree. The only provisions which can reasonably be said to deal with the manner of investigation of claims to property attached in execution of a decree are those contained in Rules 58 to 62; Rule 63 does not lay down any manner of investigation of any claim. All that it lays down is that an order passed on an objection is conclusive subject to the result of a suit brought by the aggrieved party to establish the right that he claims. It is to be noted that the order on the objection becomes conclusive from the date on which it is passed; it is conclusive abinitio. If he brings the suit to establish the right which he claims to the property and is decreed, the decree will supersede the order and arrest its effect; otherwise the order will continue to be conclusive. The effect of conclusiveness given to the order by R. 63 can hardly be said to be a manner of investigation of the claim to the property. The question of manner of investigation ceases to exist after the objection is decided; thereafter there may arise a question of the effect of the order but not of the manner of investigation. The effect of conclusiveness given to the order by R. 63 can hardly be said to be a manner of investigation of the claim to the property. The question of manner of investigation ceases to exist after the objection is decided; thereafter there may arise a question of the effect of the order but not of the manner of investigation. We, therefore, cannot see our way to agree to the contention that Rule 63 provides for the manner of investigation of objections and governs the investigation of objections to attachment before judgment. 4. Even otherwise what Rule 63 requires is that the party against whom the objection is decided should file a suit to establish the right in order to get rid of the effect of the order but that will leave the question within what period to bring the suit at large. R. 63 does not provide for the period of limitation at all; for this one has to refer to the Limitation Act. If R. 63 is to apply when an objection to attachment before judgment is dismissed, it would apply only to compel the objector to institute a suit to establish the right and to make the dismissal of the objection conclusive subject to the result of such a suit. A suit by an objector to attachment in execution of a decree must be brought within one year of the date on which the objection is dismissed, vide Article 11, but merely because such a suit is to be brought within one year it cannot be said that a suit to be brought by an objector to attachment before judgment also must be brought within one year regardless of the provisions of the Limitation Act. In the old C.P.C. the provision corresponding to R. 63 had provided that the suit must be filed within one year. Had R. 63 itself contained a provision that the suit must be instituted within one year and if R. 63 was interpreted to contain the manner of investigation of objections, it could be said that a suit by an objector to attachment before judgment also must be brought within one year, but the position is different. The Legislature amended the C.P.C. by expunging the provision that the suit must be brought within one year and enacted new Article 11 in the Limitation Act providing expressly for limitation for such a suit. The Legislature amended the C.P.C. by expunging the provision that the suit must be brought within one year and enacted new Article 11 in the Limitation Act providing expressly for limitation for such a suit. Now the question of limitation for a suit brought to establish the right that an objector claims whether the attachment was before judgment or in execution of a decree is governed solely by the Limitation Act. 5. Sri Kirty argued that the effect of R. 8 in Or. XXXVIII is that an objection to attachment before judgment is to be deemed to be an objection to attachment in execution of a decree. Certainly this is not what R. 8 says; merely because the method or manner of investigation provided for investigation of objections to attachment in execution of a decree is the method adopted for investigation of objections to attachment before judgment, it cannot be said that an attachment before judgment is to be deemed to be an attachment in execution of a decree. Instead of reproducing the provisions of R. 58 to 62 (and even 63) of Or. XXI with necessary modifications (such as substituting the words "attached before judgment" for the words "attached in execution of a decree" wherever they occur) the legislature found it convenient simply to say that the objections shall be investigated in the manner provided for the investigation of objections to attachment in execution of a decree. The effect of R. 8 is not more than reading and applying the provisions of R. 58 to 62 (and even 63) in Or. XXXVIII. If one does this and even if one reproduces in Or. XXXVIII a provision similar to that contained in R. 63, one would find that the question of limitation for the suit to be brought to establish the right claimed in the property is left to be decided in accordance with the provisions of the Limitation Act. There is thus no occasion for considering the effect of the legal fiction. 6. It was next contended that the effect of R. 8 in Or. XXXVIII would be to interpret Article 11 of the Limitation Act as including a suit to establish a right to the property attached before judgment. The words of Article 11 are unambiguous; the Court's duty is to interpret and not to legislate. 6. It was next contended that the effect of R. 8 in Or. XXXVIII would be to interpret Article 11 of the Limitation Act as including a suit to establish a right to the property attached before judgment. The words of Article 11 are unambiguous; the Court's duty is to interpret and not to legislate. If the words of a statute are plain it must give effect to them regardless of any question of anomaly or hardship; if any anomaly or hardship results from its giving effect to the plain meaning it will be for the legislature to remove it. If the words are ambiguous they call for interpretation and while interpreting them the Court may give effect to the intention of the legislature to be gathered from the statute itself. It cannot give effect to what it assumes to have been the intention of the legislature by changing or substituting the plain words and provisions. Its primary duty is to enforce the operative part of the statute and not the assumed intention. The language used by the Legislature in Article 11 is quite plain and unequivocal; there is no difficulty whatsoever in interpreting the words "property attached in execution of a decree." A property attached before judgment can never be said to be corn-prised within the words "property attached in execution of a decree." When a property is attached before judgment but the attachment continues after the decree is passed and there is an order for sale in execution of it then it may be said that the words comprise the property. Though it was in fact attached before judgment it may after the passing of the decree and the order for its execution be deemed to have been attached in execution of it. The present case is, however, different because the order on the objection was passed before the property could be said to have been attached in execution of a decree. 7. If a suit in which a property is attached before judgment is decreed there may be some scope for arguing that there was an attachment in execution of a decree, but what if the suit is dismissed? When there is no decree, there would be no scope whatsoever for arguing that the attachment was in execution of a decree. 7. If a suit in which a property is attached before judgment is decreed there may be some scope for arguing that there was an attachment in execution of a decree, but what if the suit is dismissed? When there is no decree, there would be no scope whatsoever for arguing that the attachment was in execution of a decree. So it comes to this that whether the attachment before judgment amounts to an attachment in execution of a decree or not depends on the result of the suit. But the duration of the period of limitation cannot remain in suspense or depend on the result of the suit. The period must undoubtedly commence on the date of the order on the objection to the attachment and on the date of the commencement it must be settled, and known, it will end. So on the date of the order, it must be known whether the attachment was in execution of a decree or not. In other words the answer to the question does not depend on the result of the suit and the only answer that one can give regardless of the result is in the negative. 8. The only authority of this Court dealing with the question is the Calcutta National Bank Ltd. v. Rahmat Ali Fatehullah, AIR 1953 Allahabad 452 it contains an observation without any discussion and apparently based on mere assumption to the effect that a suit by a person whose objection to an attachment before judgment is dismissed should be brought within one year. This case has been overruled by the Supreme Court in Rahmat Ali Fatehullah v. Calcutta National Bank Ltd., C.A. No. 83 of 1957 D/d. 8.2.1961. Though the above observation has not been expressly disapproved, in view of the decision of the Supreme Court on other points, it becomes a mere obiter dictum. The Supreme Court decided that Or. XXXVIII, R. 8 never become applicable to the facts of the case; so there arose no question of the limitation for a suit to establish the right to the property included in an order on an objection against attachment before judgment. All that was laid down in Bisheshwar Das v. Ambika Prasad, 1915 ALJ 732 and Hafiz Ahmad Ali Khan v. Anand Swarup, 1937 ALJ 705 is that the provisions of Rr. All that was laid down in Bisheshwar Das v. Ambika Prasad, 1915 ALJ 732 and Hafiz Ahmad Ali Khan v. Anand Swarup, 1937 ALJ 705 is that the provisions of Rr. 58 to 63 of Order XXI are deemed to have been incorporated (with necessary modification as suggested above) in Order XXXVIII; we respectfully agree with this. In Arunacharan Chetty v. Periasami Servai, ILR 44 Mad. 902 : 1921 AIR Mad. 163 and Durga Devi v. Sadananda, A.I.R. 1952 Orissa 182 the facts were materially different, but certain observations, although obiter, support the view that we take. The distinguishing facts in them were that the attachment before judgment was followed by a decree and an order for sale of the attached property in execution of it and then an objection was filed and it was investigated and decided. It was in these circumstances that it was held that the objection must be deemed to be one to attachment of property in execution of a decree. In the Madras case Wallis, C.J., definitely ruled against laying down generally that a property attached before judgment is attached in execution of a decree within the meaning of the present Article 11. In Prasada N. Ayudu v. Virayya, ILR 41 Mad. 849 : 1918 AIR Mad. 26 it was observed that the provision in R. 63 applies when an objection to attachment before judgment is decided; this, as we said previously, is not helpful because it leaves the question of limitation open. In the Orissa case, Ray, C.J., observed :- "The intendment of the Legislation, the background in which the particular provision has been enacted and the inter-connection between it and the other provisions intended either procedural or substantive, to achieve the self-same object, are dominating considerations so far and so long these latter considerations do not do complete violence to the language, a fair interpretation even though not sanctioned by too literal a reading of the provision is admissible." We respectfully dissent from the dictum that the intention of the legislature is that dominating consideration regardless of the language employed by it or even if it is unambiguous. There is undoubtedly an anomaly arising out of the way in which we look at Article 11 inasmuch as a suit by an objector, whose objection to attachment in execution of a decree is dismissed, must be brought within one year in order to get rid of the effect of the order, while a suit by an objector to an attachment before judgment can be brought within six years. But this anomaly arises out of the deliberate acts of the legislature in amending R. 63 of Order XXI and enacting Article 11 of the Limitattion Act. 9. The view that we take is fully supported by Dhan Bibi v. Mrinalini Ghosh, AIR 1945 Calcutta 449 wherein circumstances similar to those of the instant one it was ruled by Mitter and Sharpe, JJ. that the limitation is governed by Art, 120 and not Article 11. They held that an attachment before judgment is not an attachment in execution of a decree (page 450), that neither the omission of the provision about the limitation of one year from the old provision corresponding to Or. XXI, R. 63 is immaterial nor the addition of the words "attached in execution of the decree" in Article 11 (page 451) and that the anomaly referred to above should be removed by the legislature and not by Courts by resorting to judicial legislation (page 451). We respectfully agree with the learned Judge. 10. Our answer to the question referred to us is that the limitation for the suit is governed by Article 120 and not Article 11 of the Limitation Act. Let the record of the case be placed before the learned Single Judge with this answer.