Madhavan Nair, J.:— This Second Appeal has arisen in a claim suit under Order XXI, R. 63, C.P.C

2. The facts are as follows: The defendant had obtained a money decree against the plaintiff's brother in O.S No. 699 of 1114 on the file of the Munsif, Meenachial, and in execution thereof attached certain movables that were in the house in which the judgment-debtor and the plaintiff live together. By a petition under Order XXI, R. 58, C.P.C the plaintiff and his wife claimed those movables as their own. It was dismissed in toto by the executing Court, but was allowed in part by the Travancore-Cochin High Court as regards the things claimed by the plaintiff's wife. The disappointed plaintiff then instituted the present suit for a declaration of his title to the goods attached, for recovery of the value of some of those goods already sold by the executing Court and for the release of the remaining goods from attachment.

3. The defendant asserted the goods to belong to his judgment-debtor and therefore the attachment levied by him valid and unimpeachable by the plaintiff.

4. The courts below have found the goods to belong to the plaintiff and his brother jointly and dismissed the suit based on a claim of exclusive title in the plaintiff. The plaintiff has therefore come up in Second Appeal.

5. Counsel for the appellant contends that, on the findings entered by the courts below, the attachment levied under Rule 43 of Order XXI C.P.C has to be lifted and an attachment under Rule 47 of Order XXI has to be levied afresh, if the defendant wants to proceed against the goods. Counsel for the respondent submits that a finding of co-ownership in the claimant does not necessitate a total release of the goods from attachment and also that the claim suit to which the judgment-debtor has not been made a party is not maintainable in law.

6. Rules 59 to 63 of Order XXI C.P.C, relating to claims read thus:

“59. The claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached.

60. Where upon the said investigation the Court is satisfied that for the reason stated in the claim or objection such property was not, when attached, in the possession of the judgment-debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the judgment-debtor at such time, it was so in his possession, nor on his own account or as his own property, but on account of or in trust for some other person or partly on his own account and partly on account of some other person, the Court shall make an order releasing the property wholly or to such extent as it thinks fit, from attachment.

61. Where the Court is staisfied that the property was, at the time it was attached, in the possession of the judgment-debtor as his own property and not on account of any other person in trust for him, or in the occupancy of a tenant or other person paying rent to him, the Court shall disallow the claim.

62. Where the Court is satisfied that the property is subject to a mortgage or charge in favour of some person not in possession, and thinks fit to continue the attachment, it may do so, subject to such mortgage or charge.

63. Where a claim or 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.”

7. The effect of the Rule 60 is stated in the A.I.R commentaries on the Code of Civil Procedure, correctly in my opinion, thus:

“A release from attachment can be made under this rule, only if the conditions prescribed in this rule are satisfied, namely.

(1) That the property was not, when attached, in the possession of the judgment-debtor or of some person in trust for him or in the occupancy of a tenant paying rent to him.

(2) That the property being in the possession of the judgment-debtor at such time, it was so, not on his own account or as his own property but on account of, or in trust for some other person, viz., the claimant.

(3) That the property was in possession of the judgment-debtor partly on his own account and partly on account of some other person.

In the last case, the release is to be ordered to the extent to which the possession of the claimant is established. In such a case, the court should define the share of the judgment-debtor and that of the claimant and sell only the former.”

8. As the judgment-debtor has been found to be a co-owner of the movables attached, the proper process in attachment is what is indicated in Rule 47 of O. 21 C.P.C; but I think that fairness to both sides does not require the attachment effected as long ago as 1950 to be cancelled now, except in regard to the claimant's share therein, leaving the attachment as regards the judgment-debtor's share to be treated as one under Rule 47.

9. The facts in Ambalathilakath Moidinkutty v. Ambalathilakath Kunhi Kutti Ali (25 Mad. 721) were parallel to the present case. The judgment-debtor and his younger brother who was the claimant were found jointly entitled to the land attached. Though the claimant's claim was an exclusive title in himself, it was held good to the extent of a moiety of the land which was accordingly released from attachment, and the other moiety that was the judgment-debtor's was ordered to be sold in pursuance of the attachment already effected. I would also have directed a similar course in this case but for the non-joinder of the judgment-debtor in the suit, the effect whereof is being discussed hereinafter.

10. According to counsel for the appellant the judgment debtor is not a necessary party to a claim case. Though she cited many authorities supporting that contention and elaborately discussed the logic and the dicta therein, I regret to express my non-agreement with that proposition.

11. In Sarojini Bai… v. Krishna Pillai…. (1957 K.L.J 276), the judgment-debtor was the 2nd defendant in the claim suit but no party to the appeal therein. It was observed:

“Now it may be that the 2nd defendant-judgment-debtor was an unnecessary party in the suit herein filed by the plaintiff defeated claimant……..But the question is whether in the appeal taken by the plaintiff, the 2nd defendant, whose ownership of the articles attached had been upheld by the trial court as against the plaintiff and in favour of the 1st defendant attaching decree-holder, was not a necessary party……….. The plaintiff would not have suffered if he had not impleaded the 2nd defendant in the first instance. But having done so and failed in the trial court it was impossible to carry on the appeal against the 1st defendant without the 2nd defendant also on the respondent's array. The consequence is, that the appeal filed in the lower appellate court by the plaintiff was unsustainable and this appeal will have to be allowed on this sole ground.”

12. The actual decision in the above case was that the judgment-debtor, who was a party to the claim suit in the primary court, was a necessary party to the appeal also. Of course, there are observations in the judgment that he need not; have been made a party to the claim suit, in the first instance. But those observations lose all their significance in the light of the actual decision in the case. An appeal is only a continuation of the suit in every sense; and therefore if he was “an unnecessary party” to the suit he could not be held otherwise for the appeal. The judgment observes that the decision in the claim suit was of the judgment-debtor's ownership of the articles attached. If that was the issue in the suit, I cannot understand how the learned Judge could say “The judgment-debtor was an unnecessary party in the suit” and “The plaintiff would not have suffered if he had not impleaded the 2nd defendant (judgment-debtor) in the first instance”. As the actual decision in the case was that the judgment-debtor was a necessary party to the appeal, I can take it as an authority only to hold that the judgment-debtor was a necessary party to the suit at all stages and must refuse to follow the obiter observations to the contrary.

13. The earliest Madras decision cited at the Bar is Netietom Perengaryprom alias Panisherry Damodaran Nambudry v. Tayambarry Parameshwran Nambudry (4 M.H.C.R 472 FB). The suit was by a judgment-debtor to establish his right to the attached property, instituted a year and four days after the order allowing a claim thereto. It was contended that the judgment-debtor was not “the party against whom the order was given” as the enquiry on a claim was only between the judgment-creditor and the claimant, and that consequently the suit was not one under Section 246 of the Code of Civil Procedure 1859 and the limitation of one year did not apply to the judgment-debtor's right to sue. Scotland C.J held:

“The order in favour of the claim was undoubtedly against the interests of the plaintiff (the judgment-debtor), for it was the decision against the very right which he has brought this suit to establish; and I think that, as the original defendant and judgment-debtor in the suit, he became a party to the investigation of the claim……. All the questions which are made determinable by the court on the investigation relate to the right of the judgment-debtor in the attached property. The plaintiff therefore was as such a party against whom the order was made under the section as the judgment-creditor and the words ‘the party’ have a plural as well as singular signification. Consequently, the suit has been rightly held to be barred.

14. Though Innes, J. differed from the learned Chief Justice and caused the case to be placed before a Full Bench consisting of himself, Bittleston, and Collet JJ. his Lordship after hearing the argument before the full bench, agreed with the other two learned Judges to concur with the view expressed earlier by the Chief Justice.

15. Counsel for the appellant pointed out that the aforesaid decision has not been followed in other High Courts and even in the subsequent decisions of the same High Court. The reason is obvious: the learned Chief Justice had overshot the mark in holding that the judgment-debtor by virtue of his position in the suit as such became a party to the claim enquiry and therefore bound by the order therein. There might be cases where the judgment-debtor had not been notified of the claim and therefore did not participate in its investigation. It is very difficult then to say that because he was the judgment-debtor in the case he was also a party to the claim proceeding. Unless notice of the claim was taken to him, it cannot be said that he was a party to the proceeding or bound by the decision thereon. I too do not therefore feel persuaded by the dicta in 4 M.H.C.R 472 F.B, though I am in respectful agreement with the observation of the learned Chief Justice, “All the questions which are made determinable by the Court on the (claim) investigation relate to the right of the judgment-debtor in the attached property”, and do adopt the same as the basis of my conclusion in this case.

16. Shivapa v. Dod Nagaya (11 Bom. 114), Kedarnath Chattelji v. Rakhal Das Chatterji (15 Cal. 674), Guruva v. Suhbarayudu (13 Mad. 366), Muthuswami Mudaly v. Ayyalu Bathadu (13 M.L.J 367) and Sabella Appanna v. Mallidi Appanna (A.I.R 1915 Mad. 463) were all claim suits instituted by Judgment-debtors. The question in them was whether the judgment-debtor was bound by the claim order. It has consistently been held in all those cases that the judgment-debtor cannot be regarded as a party to every claim investigation and that the question would depend upon the circumstances of each case.

17. In A.I.R 1915 Madras 463 there is a pertinent observation that a judgment debtor was as much interested in opposing the claim as the judgment creditor himself. If that be so, there is every reason to hold that the judgment-debtor should necessarily be made a party to the claim proceeding.

18. In Kedar Nath Chatterji v. Rakhal Das Chatterji (15 Cal. 674) their Lordships observed:

“When a claim is preferred to property which has been attached as the properly of the judgment-debtor, the contest is really between the decreeholder who asserts that the property is liable to attachment, and the claimant who alleges that it is not in the actual or constructive possession of the judgment-debtor, and therefore not liable to attachment. And the order made in such a case is either that the property be released from attachment as not being in the possession of the judgment-debtor (Rule 60) or that the claim be disallowed, the property being found liable to attachment (Rule 61). In a sense the order in either case may be said to be against the judgment-debtor; in the one case it declares that the property is not in his possession; in the other it declares that it is liable to attachment and sale. But in neither case does it affect his right or title to the property, and in point of fact it is an order to which he need be no party, as it may be made behind his back.”

19. I am indeed unable to follow the logic in the above passage. Their Lordships have found the order in a claim case “to be against the judgment-debtor and then held the judgment-debtor “need be no party” thereto and that “it may be made behind his back”. I felt perplexed and confused as I put those observations side by side. I have held in Kolappa Pillai…Plaintiff v. Krishna Pillai…Defendant . (A.I.R 1962 Kerala 144 : 1961 K.L.J 1231) that ‘any decision without notice to the person affected thereby is incapable of binding him or his rights’ and I think I must stick on that view and hold that any order against the judgment-debtor cannot be made behind his back.

20. In Velu Padayachi v. Arumugam Pillai (A.I.R 1920 Mad. 191(2)) Sadasiva Aiyar J. observed:

“It has been held in several cases that the judgment-debtor is not a necessary party to a claim proceeding and that the proper parties to such proceeding are the decreeholder and the claimant: Of course, if the judgment-debtor intervenes and actively opposes the claim along with the decreeholder and the claim petition succeeds, he may be bound by the order unless he sets it aside within one year, as the order may be then said to be passed against him also; but ordinarily, it is the decreeholder's right to bring the property to sale against the claim of the claimant and the claimant's right to have the property released (or sold subject to the claim) which are litigated in such a petition.”

21. With all my respect to the learned Judge, who was one of the outstanding personalities in the judicial field, I have to differ to hold the decreeholder's right to bring the property to sale is not one against the claimant but against the judgment-debtor, which the claimant tries to obstruct.

22. Kumara Goundan v. Thevaraya Reddi (A.I.R 1925 Mad. 1113) points but:

“As soon as a claim petition is filed, there are three possible parties to the enquiry—the claimant, the decreeholder and the judgment-debtor and wo may have two classes of cases: (1) cases in which all three are parties. In such a case an order against the claimant will be wider in scope and has effects reaching much farther than the second class. (2) cases in which the claimant and the decreeholder are the only parties. In this case the order is narrower in scope and its consequences are not so far-reaching as in class (I).”

23. But the question before me is not of the effect of a claim investigation closed between the decreeholder and the claimant without the junction of the judgment-debtor, but the maintainability of a claim suit without the judgment-debtor on its array of parties. Even on the former question, a Full Bench of the Andhra Pradesh High court has indicated the anomalies that would arise if the judgment-debtor was made no party to the claim case though their Lordships assumed it to be settled law that ‘a judgment-debtor need not be made a party to claim proceedings.’

24. In Chimpiramma v. Subramanyam (A.I.R 1957 A.P 61 F.B) it is observed:

“The fundamental principle is that an order birds only the parties to that order or the persons claiming under them. If the judgment-debtor is made a party to the claim proceedings, the order therein will bind the auction purchaser as he claims only under the judgment-debtor……… On the other hand, if the claim is allowed and the claimant chooses not to make the judgment-debtor a party, the order cannot be an order-against the judgment-debtor, and therefore, in the terms of Order XXI, Rule 63, it is not conclusive against him, and therefore, not conclusive on persons claiming under him. In that event, the purchaser gets the right, title and interest of the judgment-debtor.”

25. Then what purpose does the order on a claim in favour of the claimant serve? The claimant's claim is to save the attached property from the execution sale; and if the decision thereon is incompetent to affect the auction purchaser at such sale it becomes absolutely useless to him. The court is not to make a vain declaration that serves no real purpose to the party who moved for it.

26. In Ghasi Ram v. Mongol Chand (28 All. 41) the judgment-debtors were added as defendants in a claim suit after the expiry of one year from the date of the claim order and the contention came in that since they were necessary parties, the suit must be deemed to have been validly instituted only when they had been impleaded therein and therefore the whole suit was time barred. It was held:

“In our opinion when the decreeholder brings a suit against a successful claimant to establish that the property belongs to his judgment-debtor and that he is entitled to bring it to sale in execution of his decree, the only person against whom he claims relief is the successful claimant. To such a suit the judgment-debtor is not a necessary party. If an unsuccessful claimant brings a suit and he seeks establish his claim against both the decree holder and the judgment-debtor, the latter is of course a necessary party”.

27. With great respect to the learned Judges who laid the above dicta, which appear to have been followed in many cases, inlcusive of 1957 K.L.J 276, I do find much significance in the distinction drawn by their Lordships between the two types of cases considered by them. When the claim suit is by the decreeholder who has been worsted by the claimant, he seeks to establish his judgment-debtor's right, title or interest in the attached property so as to sustain his attachment thereof. In my opinion, the question whether one is a necessary party to the suit or not cannot depend upon the person who institutes the suit but only upon the issue and the subject matter involved therein. The judgment-debtor must be a necessary party to the claim suit if the subject-matter thereof is really the judgment-debtor's right in the property; and it is so since a claim suit is only a continuation, an appeal or a review of the claim investigation within the scope of the Rules 60 and 61 of Order XXI, C.P.C as has been held by the Privy Council in Phul Kumari v. Ghanshyam Misra (35 Calcutta 202 P.C). See also paragraph 15 of the Judgment in Thycattusseri Church v. Sicillyamma (1962 K.L.J 1377). The question as to the impleadment of parties to an action is not only ‘against whom is the relief sought,’ but also ‘whose rights are to be adjudicated upon’. If the adjudication is of the judgment-debtor's right, as is express in the Rules 60 and 61 of Order XXI C.P.C (quoted supra), it cannot be made without the judgment-debtor on the array of parties.

28. Reprted cases show that in all jurisdictions, the judgment-debtor is usually made a party to the claim suit. See Mt. Bibi Umatul Rusul v. Mt. Lakha Kuer (A.I.R 1941 Pat. 405), Keshav Narayan v. Ghasiram (A.I.R 1956 Madhya Bharat 226) and Sarojini Bai… v. Krishna Pillai…. (A.I.R 1957 Kerala 114 : 1957 K.L.J 276).

29. Orders on claim petitions are to be made by the court either under Rule 60, Order XXI, C.P.C ‘releasing the property, wholly or to such extent as it thinks fit, from attachment’ or under Rule 61 disallowing the claim. The considerations that weigh with the court in making the order are detailed in these rules rather elaborately. They refer to the existence or non-existence of a disposable interest with the judgment-debtor, and not to the claimant's interests in the property attached, although Rule 59 requires the claimant to prove that “at the date of the attachment he had some interest in or was possessed of the property attached.” Reading the three Rules consistently with one another the proof that the claimant is required to give of his interest in or possession of the property can only be to make out conversely that the interest or possession of the judgment-debtor was to that extent absent. The total absence of any reference to the claimant's interest or possession in the two Rules immediately following Rule 59 can indicate thatwise only. The context of the Rules also indicates the same to be the deliberate intention in the legislation. A claim arises only when a certain property has been, on the motion of the decreeholder, attached as belonging to the judgment-debtor. The attachment therefore implies a provisional finding that the properly belongs to the judgment-debtor. If in fact, the property belongs to some other, either wholly or in part, he can under Rule 58 of Order 21 C.P.C prefer his claim thereto, before the executing court, in objection to that attachment. What the executing court, is then concerned with is not the claimant's interest but the extent of the judgment-debtor's interest in the property to be proceeded against in execution of the decree before it. The wording of the Rules 60 and 61 of Order 21 C.P.C which direct the court to consider only the existenca or non-existence of the judgment-debtors' interest in the attached property is very significant, as that alone is material for the purpose at hand. A claim enquiry is thus a proceeding in regard to the right, title or interest of the judgment-debtor in the attached property. Being thus a proceeding regarding the right, title or interest of the judgment-debtor, the claim enquiry must necessarily be a proceeding against the judgment-debtor, who is therefore, a necessary party to the claim proceeding. The claim suit relating to the same rights and liabilities that formed the cause of action in the claim enquiry, is really only a continuation, in a different stage, thereof and must therefore have the judgment-debtor as a necessary party thereto. Without him, the suit has to be held not maintainable in law.

30. But, in view of the confusion in the pronouncements on the matter and of the fact that this question had not been raised in the courts below, I do not propose to dismiss the suit forthwith for non-joinder of the judgment-debtor. The plaintiff will be given an opportunity to implead the judgment-debtor as a party to the cause and have a revised disposal of the same. The decree of the courts below is therefore vacated on account of the aforesaid technical defect which goes to the root of the action, and the suit remitted to the primary court for de novo disposal. The costs hitherto will be costs in the cause and will abide the result of the suit.