M. C. Desai, J. - (1.) 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 " . . . . 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. 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 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. 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.;