M. Lal, J. - (1.) This Execution First appeal filed by the judgment-debtors arises out of an order passed by the Civil Judge Mohanlalganj, Lucknow, dismissing the objection of the appellants summarily. Opposite party No. 1 decree-holder filed a suit for partition against Kandhai Lal, father of the present appellants, in which the appellants and other respondents were also parties. In that suit a decree for costs was passed against the father of the present appellants alone. That decree was put into execution and certain properties were attached. The present appellants at first filed an objection under Order or, rule 58, C.P.C., on or about the both of October, 1953 stating that the properties belonged to them and were not attachable. This objection was dismissed by the Civil Judge summarily on the and January, 1954 with the observation that it had been unnecessarily delayed as the attachment had been made on or about the 8th September, 1953. Soon after the dismissal of this objection another objection purporting to be under section 47, C.P.C. was filed on the 2nd January 1954. This objection has now been dismissed by the learned Civil judge on the ground that the former order passed on the and January, 1954 on the earlier objection operated as res-judicata. It is against this order that the present appeal has been filed. I have heard the learned counsel for the appellants at some length and also the learned counsel for the respondents. The facts given above will go to show that the first objection filed by the judgment-debtors purported to be under Order 25, rule 58, C.P.C. Since the present appellants were also parties to the former suit,they should have filed an objection under section 47, C.P.C. instead of filing an objection under Order 25, rule 58, C.P.C. Even if the objection was headed as one under Order as, rule 58, C.P.C. the court should have treated this objection as one under section 47, C.P.C. and should not have dismissed it summarily on account of delay. The authority of Lachhoo v. (Finn) Babu Lal, A.I.R. 5935 Allahabad 183 may be cited in support of the view that persons who are parties to a suit and who file an objection against attachment have to file that objection under section 47 and not under Order as, rule 58, C.P.C. However, both the judgment-debtors and the Civil Judge treated the objection to be one under Order 21, rule 58. The Civil Judge passed an order dismissing the objection summarily on the ground of undue delay as contemplated by the proviso to Order as, rule 58(x), C.P.C. The judgment-debtors objectors did not go in appeal against the order. It is also doubtful whether the objectors had any right of appeal against such an order as had been passed by the Civil Judge and whether an appeal, if filed, would have been entertained. The fact however, remains that no appeal was filed and the judgment-debtors subsequently filed the present objection under section 47, C.P.C. This objection was thrown out on the ground that the former order of dismissal of the first objection operated as res judicata. The learned counsel for the parties have not been able to cite any authority which may have a direct hearing on the point involved in the case. The appellant's learned counsel has cited the following authorities : Daulat Ram v. Dr. Anant Ram, A.I.R. 1940 Lahore 67 , Peoples Bank of Northern India Ltd. v. Syed Ailaz All, (A.I.R. 1942 Oudh 219) , Nasir Khan v. Itwari and Others, (A.I.R. 1924 Allahabad 144) and Bindraban Kundan Lall v. Gams Shankar Walaiti Ram and others, (A.I.R. 1951 Pepsu 96) . In none of these authorities the point which requires consideration in this case was considered either directly or indirectly. The question is whether under the circumstances of the case the order of summary dismissal of the objection purported to have been filed under Order 15, rule 38, C.P.C. operates as a bar to the entertainment of the subsequent objection filed under section 47, C.P.C. Since the matter is of importance and requires consideration by a larger Bench I direct that the file be laid before the Hon'ble Senior Judge to constitute a larger Bench for the disposal of the case. (On A Difference Between M.C. Desai, C.J. and S.D. Singh, J.) Opinion of S. N. Dwivedi, J.
(2.) Dwivedi, J. - Learned Judges have, while referring the appeal on account of their differences, not formulated in their referring order the precise questions of law which I am called upon to answer. However, it is evident from their separate opinions that there arise the following main questions:- (1) Whether the first objection of the appellant, which was dismissed by the Civil Judge under the proviso to R. 58, may be treated as still pending? (2) (a) If not, whether the second objection of the appellant, even though it does not embody a prayer for reviving the first objection, may be treated as embodying such a prayer? (b) If so, can the court revive the first objection? (3) Whether the order dismissing the first objection operates as res judicata in bar of the second objection? What is the reality in this case? 1. The Civil Judge has found that the appellants not their father, Kandhai Lal, are the owners of the attached property. Accordingly their property cannot be attached for the decretal amount due by their father. 2. The appellants filed their first objection to the attachment of their property under R. 58 of Or. 21 of the Code of Civil Procedure: then it never struck them that they should object under Sec. 47 of the Code. 3. The Civil Judge summarily dismissed the said objection under the proviso to R. 58: while passing the order, he was deliberately applying R. 38 and not Sec. 47. The respondents seek to support the second order of the Civil Judge dismissing the second objection of the appellants under Sec. 47 as barred by res-judicata by drawing over this bare-faced reality a double blanket of fiction: firstly, the first objection of the appellants, expressly made under R. 58, and the order of the Civil Judge dismissing that objection under the proviso to R. 58 as designedly or unnecessarily delayed - for which reason an objection under Sec. 47 cannot be dismissed - should be deemed to have been made under Sec. 47; secondly, his order should be deemed to have impliedly decided on merits the fictional objection under Sec. 47. They thus seek to engraft a fiction on a fiction. Fiction is a conscious error, a deliberate falsehood. It can therefore never attain apotheosis, nor can it be used to work injustice. As an illustration, the fiction of corporate personality has never been used to conceal the fraud or illegality committed by the agents of a corporation. Courts may use a legal fiction as a crutch to help the variety reach justice. According to Blackstone "..... these fictions of law, though at first they may startle the student, he will find upon further consideration to be highly beneficial and useful; especially as this maxim is ever invariably observed, that no fiction shall extent to work an injury, its proper operation being to prevent a mischief remedy an inconvenience that midlife result from the general rule of law. So true it is, that in fictione juris semper subsistit a equitas" (in a fiction of law equity must always subsist) (Blackstone's Commentaries, abridged by George Chase IV Edition, page 637). Stone, J. said: "While fictions are sometimes invented in order to realise the judicial conception of justice, we cannot define the constitutional guarantee in terms of a fiction so unrelated to reality without creating as many tax injustices as we would avoid." Curry v. McCanless, 83 Led. 1339 at p. 1351 see also G.T. Helvering v. Stockholmes Enskilda Bank, 79 Led. 211 at p. 217 .
(3.) As utility is the mother of fiction, it is always essential to bear in mind the end for which it is created The Bengal Immunity Company Limited v. The State of Bihar, (1955) 2 S.C.R. 603 at p. 646 . In Nasir Khan v. Itwari, A.I.R. 45 Alld. 669 the first appellate court dismissed the appeal on merit in default of the appellant, who then filed a second appeal in the High Court. The respondents raised a preliminary objection that no appeal lay as the order under appeal ought to be treated in law as an order in default. The Court declined to apply the fiction and held that the right of appeal depended not on what the inferior court ought to have done but on what it actually did. The Court declined to act en a putative state of facts, because it would have worked injustice on the appellant, who had been misled by face of the order in filing an appeal.;