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Sajja Suryanarayana Rao v. Sajja Veers Rajamma (Died) H.S Hanumantnarao And Others
Summary of Legal Opinion
Factual and Procedural Background
This is the plaintiff's second appeal, referred by a judge because it raises a question of law about the effect of dismissal in default of a claim petition under Section 325 of the Hyderabad Civil Procedure Code (corresponding to Order XXI, rule 58 of the CPC). The suit was brought by the plaintiff Suryanarayana (son of Janardhanaswamy) for declaration of title to a house in Kisnnapur, Warangal District against defendant No. 1 (his grandmother) and defendant No. 2 (alleged tenant Hanumantha Rao).
The plaint alleged that the plaintiff's father Janardhanaswamy was owner in possession, had taken a loan from one Mono Sherif, who obtained a decree and put it into execution. Defendant No. 1 set up a claim petition under Section 325 H.C.P.C (corresponding to Order XXI, rule 58) which was dismissed for default, restored on 18-10-1949, and dismissed again on 25-7-1950. After dismissal of the claim petition, the decree of Mono Sherif was transferred to Parvala Satyavathi, who, under an agreement, undertook to pay off the decretal amount and remained in possession as a tenant. Satyavathi pursued execution proceedings and filed a claim petition in those proceedings which was dismissed on 18th Ardibehest, 1354 F.
Three days after that dismissal the plaintiff filed the present suit for a declaration that he was the owner in possession and that defendant No. 1 could not execute her decree against him because he was not bound by that decree. Defendant No. 1 died during the suit and her legal representatives were substituted.
At trial, both oral and documentary evidence was led (nine witnesses for the plaintiff; six for the defendant; 24 plaintiff documents; 36 defendant documents). The trial court decreed the plaintiff's claim; the first appellate court reversed that decree, concluding the plaintiff had failed to prove title and that defendant No. 1 was the real owner. Various procedural pleas were raised at different stages (including pleas under provisions of the Hyderabad CPC corresponding to Order XXI rules), some of which were not pressed until late stages of appeal.
Legal Issues Presented
- What is the legal effect of dismissal in default of a claim petition under Section 325 H.C.P.C (corresponding to Order XXI, rule 58 of the CPC) — specifically, whether such dismissal operates to vacate any attachment that had been made in execution proceedings (the matter being one on which the erstwhile Hyderabad High Court's view differed from other High Courts)?
- Whether a plaintiff who is not in possession of the disputed property can obtain a declaratory decree under Section 42 of the Specific Relief Act, when he has omitted to seek any relief other than a mere declaration (i.e., whether the proviso to Section 42 bars the declaratory relief in such circumstances).
Arguments of the Parties
Appellant's (Plaintiff's) Arguments
- The plaintiff asserted he was the owner in possession of the suit house and sought a declaratory decree to that effect.
- The plaintiff argued that the decree sought to be executed by defendant No. 1 was not binding on him, implying that he could not be affected by the execution arising from a decree in which he was not a party.
- Evidence relied on by the plaintiff included municipal tax receipts purportedly showing payment by the plaintiff's father for a period of four years, to support the claim of possession by the father and, derivatively, by the plaintiff.
Respondents' (Defendant(s) / Claimant in Execution) Arguments
- Defendant No. 1 (and her representatives) maintained that she (defendant No. 1) was the real owner and in possession; documentary title (a sale deed in her name) and other proofs were relied upon to that effect.
- A plea was taken (originally in written statement and later pressed at appellate stages) that at the time defendant No. 1's claim petition in execution was dismissed there was no subsisting attachment because the execution petition itself had earlier been struck off (or dismissed) at the instance of the decree-holder who had transferred the decree — thus there was no attachment to be vacated.
- A plea under a provision of the Hyderabad CPC corresponding to Order XXI, rule 63 of the CPC was pleaded in the written statement but was neither pressed in trial nor in the first appeal; it was only seriously urged in the second appeal.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mohd. Gaffar v. Mohd. Abdul, AIR 1957 Andh Pra 991 | That where an application in execution is dismissed by reason of the decree-holder's default, the result contemplated in the proviso to the relevant provision (that the attachment shall cease) follows even if the Court did not make a specific order vacating the attachment. | The Court relied on this authority to support the proposition that under the Hyderabad CPC the dismissal of the execution petition results automatically in the attachment ceasing, and that absence of a specific vacating order did not prevent that result. |
| Venkat Rao v. Suryarao Bahadur Garu, AIR 1950 Mad 2 | Same proposition as above: judicial view that dismissal of the application due to decree-holder's default results in the attachment ceasing even without an express order. | The Court noted that a Bench of the Madras High Court took this view and cited it as supporting authority for the automatic effect of dismissal on the attachment. |
Court's Reasoning and Analysis
The Court approached the matter in two related strands: first, the procedural-technical question concerning the effect of dismissal of execution/claim proceedings on attachment; and second, the substantive sufficiency of the plaintiff's claim to a declaratory decree.
On the procedural point, the Court examined the execution records after the late-raised plea that, at the time defendant No. 1's claim petition was dismissed, there was no subsisting attachment because the execution petition had already been dismissed/struck off at the decree-holder's instance. The Court found from the records that on 16th Bahman, 1350 F., the decree-holder represented that he had transferred the decree and would not continue the proceedings; later, on 26th Khurdad, 1353 F., at the request of the decree-holder's agent, the claim petition was dismissed because there had been a compromise or because the decree-holder withdrew the petition.
The Court analyzed the statutory framework. It observed that Section 324 of the Hyderabad Civil Procedure Code differs from the corresponding provisions of the CPC (Order XXI rules), and under the Hyderabad provision if a petition is dismissed for default of the decree-holder the attachment shall cease without a specific direction by the Court. Thus, unlike some corresponding provisions under the CPC which contemplate a formal order, under the Hyderabad Code the consequence (cessation of attachment) flows automatically on dismissal. The Court reinforced this interpretation by citing Mohd. Gaffar v. Mohd. Abdul and Venkat Rao v. Suryarao Bahadur Garu as authority that dismissal by reason of decree-holder's default produces the effect of vacating the attachment even if the Court did not explicitly order vacation of the attachment.
Applying those principles to the facts, the Court concluded that at the time the order on defendant No. 1's claim petition was made there was no subsisting attachment. Consequently, after dismissal of the petition there was no duty on defendant No. 1 to institute a civil suit to protect any right which had been prejudiced by an attachment; when the attachment had ceased, the party was restored to the position existing before attachment and no cause of action for a fresh suit arose from that state.
Given this outcome on the procedural point, the Court considered the substantive second-appeal merits. The second appeal was governed by Section 602 of the Hyderabad CPC, under which findings of fact by the courts below are examinable afresh. Even though the trial court credited the plaintiff's witnesses and the first appellate court disbelieved them, the Court found it unnecessary to traverse the voluminous evidence because it concluded the appeal failed on a preliminary point: the plaintiff was not in possession of the property and therefore could not claim only a declaratory decree.
The Court relied on admissible material in the record: a plaint filed by the plaintiff's mother (as guardian) in prior maintenance proceedings averred that the plaintiff's father had given away his properties and left the suit house in possession of defendant No. 1; that plaint was made available to the Court and no counter was filed by the plaintiff. The municipal receipts produced by the plaintiff claiming earlier possession by the father conflicted with evidence that the father had died in 1938, corroborated by the mother's petition dated 20 March 1943. On the balance, the Court found that the plaintiff had not been in possession at the time of suit or thereafter.
Applying Section 42 of the Specific Relief Act, the Court explained that the grant of a declaratory decree is discretionary and that the proviso to Section 42 bars a declaration where the plaintiff, being able to seek further relief beyond mere declaration, omits to do so. Because the plaintiff was not in possession and omitted to seek consequential relief (such as mesne profits, injunction, or possession), the plaintiff fell squarely within the proviso and the Court concluded it should not grant the declaratory relief.
The Court nevertheless addressed whether the plaintiff should be given an opportunity to amend the plaint to include the omitted consequential relief. Noting the trend of decisions in the erstwhile Hyderabad High Court favoring giving such an opportunity, the Court invited the plaintiff to indicate whether he would amend. The plaintiff declined, citing inability to pay the required court-fee. On that basis the Court found itself obliged to dismiss the appeal.
Holding and Implications
APPEAL DISMISSED.
Immediate consequences stated in the opinion:
- The plaintiff's appeal is dismissed.
- There will be no order as to costs.
- The Court held that, on the facts, the plaintiff was not in possession and therefore could not obtain the declaratory relief alone because of the proviso to Section 42 of the Specific Relief Act; the plaintiff omitted to seek further relief and declined the Court's offered opportunity to amend the plaint to include such relief (the plaintiff cited inability to pay the necessary court-fee).
- On the procedural point, the Court held (based on the Hyderabad CPC provisions and supporting authority) that dismissal of the execution petition results in the attachment ceasing automatically, and where an attachment had already ceased there was no occasion for a civil suit based on an asserted prejudice from attachment.
Broader legal implications: the Court noted the existence of a difference of opinion between the erstwhile Hyderabad High Court and other High Courts on the effect of dismissal for default in a claim petition, but observed that in the present case resolution of that broader conflict was unnecessary because the factual record established that there was no subsisting attachment when the claim petition was dismissed. The opinion therefore does not pronounce a new general precedent on that conflict beyond applying the statutory provision and the cited authorities to the facts at hand.
Document reference: opinion of Kumarayya, J., second appeal (as provided).
Kumarayya, J.:— This is plaintiff's second appeal and is before us on reference by one of us as it raises a question of law bearing on the effect of dismissal in default of a claim petition made by defendant No. 1 under Section 325 H.C.P.O corresponding to Order XXI, rule 58 of the CPC on which there is difference of opinion between the erstwhile Hyderabad High Court and the other High Courts of India.
2. Briefly stated, the facts are these plaintiff-appellant Suryanarayana, son of Janardhanaswamy brought a suit for declaration of title to the suit house situated in Kisnnapur, Warangai Disrict against defendant 1, his own ??? grand-mother, and defendant 2, Hanumantha Rao, alleged to be the tenant in occupation. The plaint allegations were that Janardtianaswamy, father of the plaintiff was the owner in possession of the suit property, that after his death, the plaintiff was in possession, that the Plaintiff's father had taken a loan from one Mono, Sheri, who in a suit brought against him for the same, obtained 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 of the Hyderabad Civil Procedure Code corresponding to under XXI, rule ??? which claim petition was dismissed for default, on ??? that the petition was, however, restored on 18-10-49 out that it was eventually once again dismissed for ??? on 25-7-50 and that after the dismissal of the claim petition, the plaintiff got the decree of Mono. Sherif transferred in favour of one Parvala satyavaini, who under an agreement undertook to pay off the decretal amount to ??? Sherif and it was agreed that till such period she ??? 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 the was her tenant and stated that he was the tenant of the 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, out it was dismissed on 18th Ardibehest, 1354 F. As a result, just three days thereafter the plaintiff filed the present suit for declaration that he is the owner, and that mere-fore defendant 1 cannot execute her decree in that me 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 oui of whom only five are represented before us. The legal representatives 1, 3, 4 and 5 are represented by inn Gopal Rao Tuljapurkar while the legal representative 2 is represented by Shri Sadashiv Rao.
3. That suit was hotly contested. Evidence both ??? and documentary was adduced. On the evidence ??? which consists of nine witnesses on behalf of the plaintiff and six on behalf of the defendant besides 24 documents filed on behalf of the plaintiff and 36 documents on behalf of the defendant, the that 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 ??? his right, title and interest in the house, that ??? 1 in whose name stood the sale deed of the land was the real owner and that was evident from the win executed by defendant 1's husband in her favour. It may be noticed at this stage that a plea under Section ??? Hyd. C.P.C corresponding to Order XXI, rule 63 of the CPC 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 101 consideration in second appeal, similarly, a runner plea was raised in the written statement that at the time when defendant 1's claim petition under section 325 H.C.P.C corresponding to Order XX, rule 58 of the CPC was dismisseo there was no subsisting attachment as the execution petition itself was struck off by wen at the instance of me decree-holder who stated to the Court on 16-3-50 F. that he had transferred the decree in favour of satyavatni and did not therefore wish to press his petition. This plea so material to the case though taken at the 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 have come before this Full Bench.
4. It is only now for the first time that is point has been raised and that too at a very late stage when we 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. We relevant records. On perusal of we same we are fully satisfied that the plea so taken is amply supported by these records. It may be seen wat the order on claim petition of defendant No. 1 was passeeu on 26th Khurdad, 1353F. at the request of one Shrj Samau Razvi appearing for we claim petitioner that since mere has been compromise between the decree-holder and me judgment-debtor, he will not, press his claim petition, out would withdraw we same. This request was made after the execution proceedings were closed at the instance of the decree-holder, who as would appear from the proceedings dated 16th Bahman, 1350F. represented to me Court wat since we 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 we Instance of the claimant. We execution petition had already been dismissed and wat was the reason why we claimant withdrew his petition as inquiry into the matter was no longer necessary. It admits of no argument under the clear provisions or Section 324, Hyd. C.P.C that such dismissal of execution petition automatically results in the attachment having ceased.
5. The provisions of Section 324 of the Hyderabad Civil Procedure Code are somewhat different from the corresponding provision in Order XXI, rule 57 of the CPC as amended by the Madras Amendment Act, 1936. According to the former provision if any property has been attached in execution of 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 we 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 we vacating of the attachment. Order XXI, rule 57 of the CPC no doubt contemplates ??? order in wat behalf but that makes no difference for what is mandatory under the provision shall, notwithstanding the absence of specific direction, take effect. In fact were 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 wat the Court did not make an order that the attachment ??? cease, when the application was dismissed by reason of the decree-holder's default, the result contemplated in the proviso would follow as a necessary corollary. That is also the view taken by a Bench of the Madras High Court in Venkat Rao v. Suryarao Bahadur Garu, AIR 1950 Mad 2.
6. However, we are concerned in this case with we provisions of we Hyderabad Civil procedure Code where under no order for vacating the attachment is necessary for such a result must flow from an order of dismissal of the execution petition for default of the decree-holder it is there-fore clear wat at the time when the order was made on the claim petition of defendant 1 were was no subsisting attachment it follows therefore that after the dismissal of the petition, no duty was cast on the petitioner nor was Were any necessity for her to have resort to a civil sun. As a matter of fact, when we attachment itself had cease, 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 tile 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 in aside but when the order made on 26th Khurdad, ??? 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 attachment was vacated could arise or could be ??? gone into, no occasion for a suit would arise. In this premises, it is unnecessary for us to consider and resolve the ??? of 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.
7. Mow, since the whole case has been transferred to us we have to see how far the plaintiff has made oui his case. This second appeal is governed by the provisions of Section 602, Hyd. C.P.C as ft. was preferred prior to the application of the Code of Civil Procedure to we state of Hyderabad. Under the said provision even we findings on fact given by the Court below are at large in second appeal and have to be considered afresh and determined on the evidence in this case. It may be seen that mm? witnesses on behalf of the plaintiff and six on behalf of we defendant were examined in we case. The trial Court believed the oral evidence adduced on behalf of the plaintiff and decreed the suit. On the other hand, we first appellate Court disbelieved these witnesses on the ground that their statements do not accord with the documentary evidence nor are they consistent with each other. Perhaps it may not be necessary for us to consider this voluminous evidence which has given rise to such difference for we are of opinion that this appeal must fail on a preliminary ground.
8. The plaintiff's suit is one for declaration of right that he is the owner in possession of we property. It is declaratory simpliciter, as the plaintiff claims to be in possession. But the defendants denied not merely title but also possession of we plaintiff. Apart from the fact that in previous proceedings his alleged tenant could not successfully mane out her case of actual occupation which in turn gave occasion to this suit, it is significant to note that Sow dagnyavamamma me mother of the plff. as his guardian in we suit for maintenance in the Dist. Munsif's Court, Peddapuram clearly stated that Suryanarayana, father of Janaradhanaswami had ??? away all his properties and left the suit house in possession of defendant 1 and wat the latter was in possession, A copy of this plaint was filed along with the petition dated 3rd Khurdad, 1355 F4 and we learned Juage, sadar Aoaiam, gave an opportunity to the other party (Plaintiff) to file a counter, which the plaintiff failed to file. It is clear tram we averments in we said plaint that the plaintiff was not in actual possession of we property. As a matter of fact, on wat basis also he had prayed for a decree for maintenance. That suit was originally dismissed by the Dist. Munsif's Court but it is common ground that it was eventually decreed in appeal.
9. It is clear that admittedly defendant No. 1 was in possession of the suit property. Of course, in the present sun the plaintiff by production of municipal receipts in evidence of payment of taxes by the plaintiff's father from ??? for a period of four years has sought to establish that his father while alive was in possession of the property, oui this evidence is in sharp conflict with the evidence on record that the plaintiff's fattier had died in the year 1938 itself. That is further corroborated by the contents of the petition of the plaintiff's mother as his guardian filed in use District Munsif's Court on 20th March, 1943 in these circumstances, the claim that janardhanswamy was in possession and thereafter the plaintiff is in possession cannot foe held to be true. It follows therefore that we plaintiff was not in possession at the time of the suit it is not his case that he came into possession subsequently. The result is that neither at the time of the suit not an any time thereafter he has been in possession of the sun house. The question then is whether his suit for declaration is tenable in law. Section 42 of the Specific Relief act governs the situation. It is not a matter of absolute right to obtain a declaratory decree thereunder.
10. The language of the provision makes it abundantly clear that the grant of declaratory relief is purely discretionary with the Court — albeit it is a discretion to the exercised judicially. Proviso to Sec. 42 at the same time enjoins that no such relief shall be granted where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so. The promotion is express and explicit and prima facie admits of no exception, it has therefore to be construed strictly. Of course, the pronation cannot go beyond the clear meaning that the language of the proviso would convey. Evidently, the plaintiff is not in possession of the property. As such in the circumstances of the case, he was able to seek this further relief oui the has omitted to do so. As it is his suit is for declaration simpliciter. It is manifest that he is within the promotion of the proviso to Section 42 of the Specific Relief act. The result is that the Court shall not make the declaration prayed for.
11. The question then is whether appeal should db dismissed on that basis without giving an opportunity to we party to include the relief so omitted, of course the language of that proviso imposes no obligation except that in the events specified therein, no declaration shall be made. So then if the plaintiff seeks to amend the plaint and Include the relief save in exceptional conditions he should be given an opportunity, me trend of decision of the erstwnue Hyderabad High Court has been that in such cases an opportunity should always be given to the party concerned to make an amendment in the plaint. That we ??? is the most appropriate step as it advances the cause and sub-serves the interests of justice. We therefore called upon the party to let us Know whether he was prepared even at this stage to make mo necessary amendment by adding a prayer for consequential relief. The counsel appearing took time to ascertain the same from his client and today stated before us that his client is not prepared to make any amendment as he has to pay enormous court-fee, which it is not possible for mm to pay. Under those circumstances, we are left with no other alternative but to dismiss the appeal. The appeal is dismissed. In the circumstances of the case, there will the no order as to costs.
KG/R/D.V.6
12. Appeal dismisses.
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