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1965 DIGILAW 157 (KER)

Mallan Subramonian v. Syed Muhammed Noohukannu

1965-06-30

S.VELU PILLAI

body1965
Judgment :- 1. This second appeal by the first defendant is in a suit for declaration of title and possession and for the cancellation of the proceedings in execution of the decree in O.S. 910 of 1109, the plaintiffs being the respondents. That decree was upon a hypothecation bond which the second defendant gave to the appellant. The decree was against the hypotheca and the second defendant. In execution of the decree, the suit property was attached and in due course was purchased by the appellant. The respondents obstructed delivery of possession to the appellant, but their obstruction was rejected by Ext. VIII, dated the 26th November, 1949. The civil revision petition directed against it was dismissed by the High Court by Ext. O, dated the 25th January, 1951. The respondents commenced this suit on the 27th November, 1952, more than a year after Ext. O. The basis of this suit, as of their obstruction to delivery of possession was, that the suit property belonged to the second defendant's tarwad, that under a partition of the tarwad it was allotted to various sharers from whom the respondents took assignments, and that the decree in O.S. 910 of 1109 was not binding on the tarwad. The courts below have held, that having failed to institute a suit under Order XXI, R.103, the respondents are precluded from claiming possession of the property, which had since been delivered to the appellant, but that their title to the property is unaffected. 2. In second appeal, the appellant's learned counsel relied on the decision of the full bench of this Court in Ouseph Chacko v. Krishna Pillai Govinda Pillai 1957 KLT. 742 for the position, that by their omission to institute a suit under Order XXI, R.103, within the period of limitation prescribed by Art.11A, the respondents have lost also their title to the property. The full bench has held, that a suit under Order XXI, R.103, is concerned not only with actual possession at the date of the order, but also with the right which the plaintiff claims to the present possession of the property. This has reference to the title, on which the right of the respondents to the present possession of the property depends. 3. This has reference to the title, on which the right of the respondents to the present possession of the property depends. 3. The learned counsel for the respondents contended, that as the property belonged to the tarwad of the second defendant and not to him individually, the decree was void against the tarwad, and so too all execution proceedings, including the attachment and sale of the property, and that on the authority of Narayanan Madhava Panicker v. Kurian Ouseph 1960 KLT. 519, their omission to sue under Order XXI, R.103, is of no consequence. There are dicta and observations in the case cited which lend support to the contention, but with respect, I am unable to subscribe to the view taken in it. In the present case, the appellant sought no decree in O.S. 910 of 1109 and obtained none against the tarwad of the second defendant; the decree was simply against the second defendant and the hypotheca. The appellant attached the suit property as that of the second defendant and not of his tarwad. It is quite true, that the decree did not affect or bind the tarwad, but it is not quite correct for the respondents to contend, that it is void against the tarwad. That the decree is not binding on the tarwad, is not to say that the omission to institute a suit under Order XXI, R.103, is of no legal consequence. For example, if a decree is obtained against A and the property of B is attached and proceeded against as the property of A, and B raises a claim to the attachment before sale or obstructs delivery of possession after sale and an adverse order is passed against him, B cannot ignore that order and treat the decree and the execution proceedings as void. B's omission to sue to set aside the order, involves the consequence which is provided for in Order XXI, R.63 or R.103 as the case may be. It might be different, if the decree was obtained against A's tarwad but it happened to be void, say for defect of parties as prescribed by statute. In that case, the decree and execution proceedings including the attachment and sale would all be void. An adverse order against B, under Order XXI, R.63 or R.103 might be regarded as inconsequential. Such is not the case here. In that case, the decree and execution proceedings including the attachment and sale would all be void. An adverse order against B, under Order XXI, R.63 or R.103 might be regarded as inconsequential. Such is not the case here. The decree was simply against the second defendant and the hypotheca and the property was attached and sold as if it belonged to him. 4. In Narayanan Madhava Panicker v. Kurian Ouseph 1960 KLT. 519 cited, the decree was against Govinda Kurup, and from what appears, the property was sold in execution as his property. The claim was preferred by a member of his branch, on the ground that the property belonged to the branch. The judgment then proceeded to hold, that the decree not having been obtained against the branch in accordance with S.31 of the Nair Act, was a nullity and so too the attachment and the other execution proceedings. As a nullity, the rule laid down by the Privy Council in A.T.K.P.L.M. Muthiah Chetti v Palaniappa Chetti AIR. 1928 P.C.139 was applied and the omission to sue under Order XXI, R.63 was held to be no bar. The case before the Privy Council was somewhat different. The attachment was held to be no attachment, as it was not made in compliance with the formalities of an attachment, there was no defacto attachment. After quoting Order XXI, R.63, the question for consideration and its answer were stated thus by the Privy Council: "Is the appellant a person against whom an order as just described has been made? The Board is of opinion in the negative." Their Lordships proceeded to state: "The case thus comes to be narrowed down to whether it is a necessity of the order here specified that the property to which a claim is made or to the attachment of which there is an objection, must be property which had been de facto attached". The Board is of opinion in the negative." Their Lordships proceeded to state: "The case thus comes to be narrowed down to whether it is a necessity of the order here specified that the property to which a claim is made or to the attachment of which there is an objection, must be property which had been de facto attached". "It would seem to be so by the words, and by the very nature of the case, for the only property referred to is 'property attached in execution' " The rule was stated thus: "Unless there has been attachment, there can be no order made on an objection lodged to it, nor can any claim be made to the property so attached; and without such an order, there is no terminus a quo for the running of limitation, and with this the limitation itself is nonexistent. The first head of Art.11, in the opinion of their Lordships, can on its words mean nothing else". If in Narayanan Madhava Panicker v. Kurian Ouseph,1960 KLT 519, the decree-holder purported to obtain the decree only against Govinda Kurup and not against his branch, in my humble opinion, the case corresponds to the illustration I have given above of a decree being obtained against A and a claim or obstruction being preferred or raised by B. If so, it seems to me, speaking with respect, that the rule in A.T.K.P.L.M. Muthiah Chetti's case cannot apply. 5. I am therefore led to hold, following the decision of the full bench referred to above, that by the omission of the respondents to institute a suit under Order XXI, R.103, they have lost their title to the property. In the result, the suit is dismissed, the second appeal is allowed but without costs in this court. I grant leave to appeal as I happen to differ from the earlier decision. Allowed.