SAJJA SURYANARAYANA RAO Vs. SAJJA VEERA RAJAMMA DIED H S HANUMANTHARAO

JUDGEMENT

(1.) This is plaintiffs second appeal and is before us on reference by one of us as it raises a question of raw bearing on the effect of, dismissal in default of a claim petition made by defendant No. 1 under Section 325 H.c.p.c. corresponding to Order XXI, Rule 58, C.P.C. on which there is a difference of opinion between the erstwhile Hyderabad High Court and the other High courts of India.

(2.) Briefly stated, the facts are these plaintiff-appel-lant Suryanarayana, son of Janardnanaswamy brought a sun for declaration of title to the suit house situated in Kishna-pur, Warangal. Disrict against derendant 1, his own paternar grand-mother, and defendant 2, Hanumantha Rao, alreged to be the tenant in occupation. The plaint allegations were that Janardhanaswamy, father of the plaintiff was the owner in possession of the suit property, that after his death, the plaintiff was in possession, that the plain-tiffs father had taken a loan from one Mond. Sherif, who in a suit brought against him for the same, obtained a decree and put it into execution, that Janaronanaswamy was dead By that time, that Defendant 1, his mother, set up her claim to the property under Section 325, Hyderabad Civil Procedure Code corresponding to Under XXI, Rule 58, which claim petition was dismissed for default, on 17-6-49, that the petition was, however, restored on 18-10-49 but that it was eventually once again dismissed for default on 25-7-50 and that alter the dismissal of the, claim petition, the plaintiff got the decree of Mond. Sherif transferred in favour of one Parvala satyavatni, who under an agree-ment undertook to pay off the oecretal amount to Mono Sherif and it was agreed that till such period she shall continue in possession of that suit house as a tenant. His contention was that Satyavathi was thus in possession of the house as a tenant when defendant 1 brought her suit for possession against defendant 2 alleging that he was her tenant. Defendant No. 2 therein denied that he was her tenant and stated that, he was the tenant of me plaintiff. That suit ended in an ex parte decree against him. Satyavathi, who claimed to be in actual possession filed a claim petition in the execution proceedings, but it was dismissed on 18th Ardibehest, 1354 P. As a result, just three days thereafter the plaintiff filed the present suit for declaration that he is the owner, and that inere-tore defendant 1 cannot execute her decree in that the said decree to which he was in no way a party was not binding on him. Defendant 1 died during the career of the suit. Her legal representatives were brought on record out ot whom only five are represented before us. The legal representatives 1, 3, 4 and 5 are represented by Shri Gopal Rao Tuljapurkar while the legal representative 2 is represented by Shri Sadashiv Rao.

(3.) That suit was hotly contested. Evidence both oral and documentary was adduced. On the evidence produced which consists of nine witnesses on behalf of the plain-tiff and six on behalf of the defendant besides 24 documents filed en behalf of the plaintiff and 36 documents on behalf of the defendant, We trial court decreed the claim of the plaintiff. But on a consideration of the same evidence, the first appellate Court came to a different conclusion. It found that the plaintiff has tailed to establish his right, title and interest in the house, that defendant 1 in whose name stood the sale deed of the land was the real owner and that that was evident from the will executed by defendant 1s husband in her favour. It may be noticed at this stage that a plea under Section 330, Hyd. C.P.C. corresponding to Order XXI, rule 63 C.p.c. was raised in the written statement itself but neither in the trial Court nor before the appellate Court it seems to have been pressed probably because of the trend of decisions of the erstwhile Hyderabad High court, for the first time, it was seriously urged when the matter came up for consideration fn second appeal, similarly, a further plea was raised In the written statement that at the time when defendant ls claim petition under Section 325 H.C.P.C. corresponding to Order XX, Rule 58 C.P.C. was dismissed there was no subsisting attachment as the execution pen- tion itself was struck off by then at the instance of the decree-holder who stated to the Court on 16-3-50 P. that he had transferred the decree in favour of Satyavathi and did not therefore wish to press his petition. THIS plea so material to the case though taken at me earnest opportunity was never pressed at all. Nor was even a vague reference made to it even when the matter was for consideration in second appeal Before this court. It that were done perhaps the matter would not nave come before this full Bench. It is only now for the first time that this point has been raised and that too at a very late stage when me arguments were about to be concluded. However, as this plea is material in that it goes to the root of the matter, we called for the relevant records. On perusal or the same we are fully satisfied that the plea so taken is amply supported by these records. It may be seen that me order on claim petition of defendant No. 1 was passeu on 26th Khurdad, 1353F, at the request of one Shri Samau Razvi appearing for the claim petitioner that since there has been compromise between the decree-holder and the judgment-debtor, he will not press his claim petition, but would withdraw the same. This request was made after the execution proceedings were closed at the instance or the decree-holder, who as would appear from the proceedings dated 16th Banman, 1350F. represented to the Court that since the decree had been transferred in favour of another, he (the decree-holder) would not continue these proceedings, it is therefore clear that at the time when the claim petition was dismissed at the instance of the claimant the execution petition had already been dismissed and that was the reason why the claimant withdrew his petition as inquiry into the matter was no longer necessary. It admits of no argument under the clear provisions or Section 321, Hyd. C.P.C. that such dismissal of execution petition automatlcally results in the attachment having ceased. The provisions of Section 324 of the Hyderabad Civil Procedure Code are somewhat different from the corresponding provision in Order XXI, Rule 57 C.P.C. as amended by the Madras Amendment Act, 1936. According to the former provision If any property has been attached in execution or a decree but no further steps could be taken on account of default of the decree-holder, the Court shall dismiss the application or on sufficient cause shown adjourn it for future hearing and on the dismissal of the petition, attachment shall cease. It is obvious therefore that unlike the provisions in Order XXI, Rule 5/ C.P.C. no specific direction by the Court in relation to vacating the attachment is necessary and the dismissal of the execution petition win result automatically in the vacating of the attachment. Order XXI, Rule 57 C.P.C. no doubt contemplates specific order in that behalf but that makes no difference for what is mandatory under the provision shall, notwithstanding the absence of specific direction, take effect. In fact mere is sufficient authority in support of this proposition. In Mohd. Gaffar v. Mohd. Abdul, AIR 1957 Andh Pra 991 It was observed by this Court that though it may be that the Court did not make an order that the attachment shall cease, when the application was dismissed by reason or the decree-holders default, the result contemplated in the proviso would follow as a necessary corotlary. That is also the view taken by a Bench of the Madras High Court in Venkat Rao v. Suryarao Bahadur Gam, AIR 1950 Mad 2. However, we are concerned in this case with the provisions of the Hyderabad Civil Procedure Code whereunder no order for vacating the attachment is necessary for such a result must flow from an order of dismissal of the execu- tion petition for default of the decree-holder. It is interefore clear that at the time when the order was made on the claim petition of defendant 1 there was no subsisting attachment. It follows therefore that after the dismissal of the petition, no duty was cast on the petitioner nor was there any necessity for her to have resort to a civil sun. As a matter of fact, when the attachment itself had ceased, the party was put back in the same position as he was in before attachment and as such there could possibly be no cause of action for her to the a suit. The object of a contemplated suit is to establish a right which has been negatived by the claim order and is in substance to set it aside but when the order made on 26th knuroad,, 1350P, in no manner affected or prejudiced her right; and was in sense a determination of her right in the suit property as evidently no such question after the anacnment was vacated could arise or could be justitiably gone into, no occasion for a suit would arise, in this premises, it is unnecessary for us to consider and resolve the difference or opinion between the erstwhile Hyderabad High Court and the other High Courts on the question of the effect or an order of dismissal for default in a claim petition.