(1.) THE second appeal arises out of the present suit O.S. No. 280 of 1981, on the file of the District Munsif, Kallakurichi. The suit is one for declaration of title and injunction. The plaintiff in the present suit was a claimant in respect of an attachment over the suit property in O.S. No. 290 of 1967 on the file of the District Munsif, Kallakurichi, which was a suit filed by one Sadayan Asari against the second defendant in the present suit in respect of a promissory note, executed by her husband Murugesa Asari. The plaintiff in the present suit put forth a claim to the suit property under the cover of the sale deed, dated 24 -4 -1967 executed by the second -defendant herein. The claim of the plaintiff was dismissed and the plaintiff was obliged to file O.S. No. 656 of 1971 on the file of the District Munsif, Kallakurichi, for setting aside the summary order. That suit was decreed by the first Court. There was an appeal A.S.No. 447 of 1973 on the file of the Subordinate Judge, Cuddalore, by Sadayan Asari, the decree -holder in O.S. No. 290 of 1967. In the appeal A.S.No. 447 of 1973, the decree of the first court was set aside and the suit O.S.No. 656 of 1971 was dismissed. There the matter rested for the time being Another litigation cropped up in O.O. No. 113 of 1975 on the file of the District Munsif, Kallakurichi. That was a suit for partition filed by one Vengachi alias Veerammal, who is the fourth defendant in the present suit against the plaintiff and defendants 2, 3 and 5 in the present suit In the suit for partition, the question arose as to whether the sale dated 24 -4 -1967 in favour of the first defendant in that suit, who was the claimant in the earlier litigation and the plaintiff in the present suit, could be upheld. The decision by the first Court on this question went against the first defendant in that suit, who is the plaintiff in the present suit. The decision on the claim for partition went against the plaintiff in that suit, the fourth -defendant in the present suit. It was held, taking note of the decision in A.S. No. 447 of 1973 that the first -defendant in O.S. No. 113 of 1975, the plaintiff in the present suit, could not have title to the suit property. The appeal A.S. No. 46 of 1978 by the plaintiff in O.S. No. 113 of 1975, the fourth -defendant in the present suit, and the memorandum of cross appeal by the first -defendant in that suit, the plaintiff in the present suit, were dismissed. Yet the plaintiff has laid the present suit O.S. No. 280 of 1981 for declaration of title and injunction. The first Court decreed the suit However, on appeal, the lower Appellate Court took a different view and taking note of the decision in the claim suit O.O. No. 656 of 1971, as rendered by the lower Appellate Court in A.S. No. 447 of 1973, dismissed the suit of the plaintiff. This has obliged the plaintiff to prefer the present second appeal.
(2.) WHEN the second appeal was heard, by the learned single Judge, it was urged before him that the decision of the Full Bench of this Court in Narasimhachariar v. Raghava Padayachi : AIR 1945 Mad 333 , has been approved by the Supreme Court in Mangru v. Taraknathji : [1967] 3 SCR 125 , and the observations of the Division Bench of this Court in Peda Ramireddi v. Bichalu : AIR1952Mad837 , do not seem to be in accord with the ruling of the Full Bench in Narasimhachariar v. Raghava Padayachi : AIR 1945 Mad 333 . The learned single Judge felt that though the concerned aspect has not been touched upon by the Supreme Court, yet as to what would be the effect of the observations of the Division Bench in Peda Ramireddi v. Bichalu : AIR 1952 Mad 837 , in the light of the confirmation by the Supreme Court that the view of the Full Bench has got to be decided by a Full Bench and in that view made the reference and that is how the matter is now before us.
(3.) IN Narasimhachariar v. Raghava Padayachi : AIR 1945 Mad 333 , the question arose as to whether the order passed dismissing an objection preferred to an attachment under Order 21, Rule 58, no suit having been filed under Rule 63 (underlining by us to supply emphasis) operates beyond proceedings in execution of the particular decree. In Singariah Chetty v. Chinnabi, (1920) 40 M.L J. 7 :, I.L.R. 44 Mad. 268 : (1920) 12 L.W. 725. Ailing and Orders ,JJ., held, however, that an order on a claim petition which has not been set aside in a suit by the claimant under Order 21, Rule 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. This view was over ruled by the Full Bench in the following terms: