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.