Decided on November 25,1954



- (1.) This Civil Revision Petition is filed against the findings recorded by the learned Subordinate Judge of Masulipatam on additional Issues 4 and 5 in O. S. No. 61 of 1950 on his file.( The plaintiff-decree-holder sought to attach the properties of the first defendant in O. S. No. 61 of 1950 (Petitioner herein) as belonging to his judgment - debtor who is the second defendant in that suit, in execution of the decree in O. S. No. 215 of 1945 (District Munsifs Court of Gudivada). The petitioner herein filed a claim petition (E. A. No. 462 of 1949) under O. 21, R. 58, Civil P. C. and her claim was allowed. The plaintiff-decree, holder consequently filed O. S. No. 61 of 1950 seeking to set aside the Order made on the claim petition. One of the pleas raised in that suit by the petitioner herein was that the debt due to the plaintiff was a bogus one and that the decree obtained by him was vitiated by fraud and collusion. On that pleading, additional issues 4 and collusion. On that pleading, additional issues 4 and 5 were raised. The learned Subordinate Judge held that in a suit filed under O. 21, R. 63, Civil P. C. it is not open to the defendant to attack the decree or the debt on which it is based. The present revision petition is, therefore, filed by the first defendant in O. S. No. 61 of 1950, Sub-Court. Masulipatam.
(2.) From the facts stated above, it is clear that the claim preferred by the petitioner herein was upheld by the executing Court, and the decree - holder had consequently to file the suit under O. 21 R. 63, Civil P. C. In such a suit, he has to establish that the properties sought to be attached belong to the judgment-debtor and it is certainly open to the defendant to raise all defence to non-suit the plaintiff. If the defendant is in a position to prove that the plaintiff is not at all a creditor or that the decree obtained by him was one obtained by fraud or collusion, the suit will have to fail. I am not, however, concerned with the question whether the suit having been filed in a representative capacity, it is not open to the other creditors to continue the suit or not.
(3.) The nature and scope of a suit under O. 21, R. 63, Civil P. C., has been well set out by George Rankin J. in -- Najimunnessa Bibi v. Nacharaddin Sardar, AIR 1924 Cal 744 at p. 748 (A), and is in the following terms : "The suit, if brought, is not limited by any special standard of evidence or of law. The claimant may, if necessary, thrash out his title in the fullest and most ultimate sense. But, if the title which he claims is not the ultimate full title to the property, then, of course, he must be content to assert whatever the title claimed may be. So, too, the decree-holder may make out his debtors title exactly as if it were a suit for possession by the judgment-debtor".In -- Masina Bavamma v. Yendru Papanna, AIR 1936 Mad 971 at pp. 972--973 (B), Venkataramana Rao J., held : "When a suit is instituted under O. 21, R. 63, Civil P. C., it is not merely a continuation of the claim proceeding, but what is essentially litigated is a question of title".Elaborating that point, the learned Judge observed as follows : "For example, it, may be the claimant in the claim proceedings would have succeeded by merely proceedings would have succeded by merely showing that he was a trespasser, but the decree-holder can establish in a suit which he filed under O. 21, R. 63, that the trespass was not of sufficient duration to confer any title in the successful claimant and the property still belonged to the judgment-debtor and that therefore he is entitled to attach the property as that of the judgment-debtor".The learned Judge followed the observations of Wallance J., in -- Subramanyam v. Narasimham. AIR 1929 Mad 323 (C), which runs thus : "The claim enquiry merely settles whether the claimant is in possession the property in his own behalf or on behalf of the judgment-debtor. But the claimant in his suit has to establish right which he claims to the property, that is, the question of title is also raised for decision. The suit is therefore, really in part a new legal proceeding and is not entirely restricted to the questions within the scope of the claim enquiry".;

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