1. The circumstances giving rise to this revision petition are that the non applicants Ghasiram, Jayram and Shyamlal held a money decree against the non-applicant Jagannath. In execution of this decree certain property alleged to be the property of the judgment-debtor Jagannath was attached. The applicant Keshav Narayan's father (who is now dead) objected to the attachment asserting that Jagannath had mortgaged the property with him add had duly put him in possession as a mortgagee. This objection was ultimately accepted in the executing Court.
Thereafter the decree holders filed a suit under Order 21 Rule 63 in the Court of Civil Judge Second Class, Pohari for a declaration that the property in question belonged to their judgment debtor and as such was liable to attachment and sale in execution of their decree and that Jagannath, the judgment-debtor was in possession of the property as an owner. The trial Court decreed the plaintiff-decree holders' claim. The applicant's father, who was the mortgagee, then appealed to the Court of Civil Judge First Class, Shivpuri. In appeal the learned Civil Judge upheld the decision of the trial Court. The mortgagee then filed a second appeal (Civil Second Appeal No. 6 of 1952) in this Court. That appeal was allowed declaring that the property in suit was not liable to attachment and sale in execution of the non-applicants' decree against Jagannath and the decree-holders' suit under Order 21 Rule 63 was dismissed.
It appears that at one stage in the execution proceedings the mortgagee- objector failed in his claim. Before he could succeed in an appellate Court, the sale of the property was held and the decree-holders themselves became the auction purchaser. Thereafter the decree-holders also obtained possession of the property. After the decision of this Court in Civil Second Appeal No. 6 of 1952, the applicant presented in the Court of Civil Judge Second Class, Shivpuri an application for execution of the decree for costs awarded by this Court in the said appeal and therein also made a prayer that the possession of the property which was sold to the decree holders in execution proceedings No, 92 of Samvat 2102 on the file of the Court of Sub-Judge Second Class, Pohri be restored to him. The learned Civil Judge Second Class made an order for the delivery of possession of the property to the applicant and the applicant obtained possession thereof. Subsequently the decree-holders complained that they are dispossessed from the property without any notice being given to them of the application for " restitution " filed by the applicant and that the applicant was not entitled to the possession of the property even under the decision of this Court in Civil Second appeal No. 6 of 1952 and that, therefore, they be again put in possession of the property. The learned Civil Judge after hearing both the parties passed an order on 17th May 1955 rescinding under Section 251 C. P. Code his previous order about the delivery of possession of the property to the applicant and directing that the non-applicants Ghasiram, Jayram and Shyamlal be put in possession of the property. It is against this order that the present revision petition is directed.
2. After hearing learned counsel for the parties, I have formed the view that order of the Civil Judge Second Class, Shivpuri holding that the applicant is not entitled to the possession of the property, cannot be upheld.
The reasoning of the learned Judge of lower Court is that the decree of this Court in Civil Second Appeal No. 6 of 1952 is merely declaratory ; that besides the direction as regard costs it does not contain any other direction; that no question of restitution is involved in execution of the decree for costs ; and that the applicant cannot obtain possession of the property by merely referring in the application for execution to the execution proceedings No. 92 of Samvat 2002 on the file of the Court of Sub-Judge Second Class Pohri and praying that on the strength of the decision of this Court in the aforesaid Civil Second Appeal, he is entitled to tie possession of the property. The learned Judge further took the view that for the purpose of obtaining possession of the property, the applicant should have made an application under section 144 C. P. Code in the execution proceedings in which the decree-holder obtained possession of the property after purchasing it or that they should have filed a new suit claiming possession of the property.
This reasoning proceeds on an altogether wrong conception of the nature of a suit instituted under the provisions of Order 21 Rule 63. Rules 58, 59, 60, 61 of Order 21 deal with investigation of claims and objections to the attachment of property. Rule 63 states that where a claim or an objection is preferred, the party against whom an order is made, may institute a suit to establish a right which he claims to the property in dispute but subject to the result of such suit, if any, the order shall be conclusive. Rule 103 of Order 21 which enables a person not being a judgment -debtor against whom an order is made under Rule t8, Rule 99 or 101 to file a suit to establish a right which he claims to the present possession of the property, also concludes with the words "but subject to the result of such suit, if any, the order shall be conclusive". The words ''but subject to the result of such suit, if any, the order shall be conclusive in both these rules are very significant as throwing light on the nature of the suit instituted under Order 21 Rule 63 or Order 21 Rule 103, A suit under Order 21 Rule 63 is but a continuation of proceedings under Rule 58 so also a suit under Order 21 Rule 103 is a continuation of proceedings under Rule 98 or 99. A suit whether under Order 21 Rule 63 or one under Order 21 Rule 103 is in essence a suit to set aside an order of executing Court passed under Order 21 Rule 58 or Rule.98 or 99 , as the case may be.
This is clear from the decision of the Privy Council in Phul Kumari vs. Ghanshyam Misra (I. L. R. 35 Calcutta 202 P. C.) where Lord Robertson in delivering the judgment of the Board pointed out that a suit instituted under section 2S3 of the Civil Procedure Code of 1882 (which corresponds to Order 21 Rule 63 of the present Code) was merely a mode of obtaining a review of the order passed under section 280 and 281 of the old Code (corresponding to Order 21 Rule 6U or Rule 61).
It is thus plain that the effect of a suit under Order 21 Rule 63 or Order 21 Rule 103 is to keep alive the execution proceedings giving rise to it till the decision of the suit. The older cancelling or maintaining an attachment in execution proceedings is subject to the result of such a suit and is liable to be effected by it. It becomes final only on the date of the disposal of the suit. It follows, therefore, that if in execution proceedings the objection of a claimant that the attached property belongs to him and is not liable to be sold in execution of a decree against the judgment-debtor is rejected and if that order is ultimately reversed in a suit under Order 21 Rule 63 to which the decree-holder and the judgment-debtor are parties, and further, if in the meantime the property is sold by the executing Court, then the effect of the decision in the suit under Order 21 Rule 63 would be to remove the attachment and to set aside the sale founded on it. As the order of attachment made in execution proceedings is itself subject to the decision of a suit under Order 21 Rule 63 and that order is subsequently set aside, the foundation upon which the sale of the attached property took place would disappear and the sale would ipso facto stand vacated without any formal order setting aside the sale from the executing Court or from the Court deciding the suit under Order 21 Rule 63.
In such a case when the sale stands vacated as a result of the decision of a suit under Order 21 Rule 63, both the decree-holder and the claimant are entitled to ask for such relief from the executing Court as would place them in status quo ante and it would be the duty of the executing Court which had made the attachment and sale to grant the relief in exercise of its inherent powers. Similarly, if the claim of a person resisting the delivery of possession of the property sold to a decree-holder and auction purchaser is rejected by the executing Court and if he then files a suit under Order 21 Rule 103 and succeeds in it after establishing his claim to the present possession of the property, the order on the basis of which the decree- holder or the auction purchaser took possession of the property would disappear and it would be the duty of the executing Court which had passed the order under Rule 98 to restore status quo ante and put the other party in possession. In such a case there is no question of restitution under section 144 C. P. Code. That section cannot in terms apply to such proceedings. The restitution of possession to the successful claimant in a suit under Order 21 Rule 63 or Order 21 Rule 103 is under the inherent powers of the Court under section 151 C. P. Code. This view finds support in the decisions in Mt. Bibi Umatul Rasul vs. Mt. Lekho Kuer (1941 Patna 405); Bai Hakimbu and others vs. Daya Bhai Rugnath (1939 Bombay 508) and Gobardhan Banerjee vs. Sukhamoy and others (1951 Calcutta 481). In 1941 Patna 405 it was held that where in execution of a money decree, the decree- holder attaches certain property as belonging to the judgment-debtor and on the rejection of an objection to attachment by a third party under Order 21 Rule 58 brings the attached property to sale and purchases it himself and the sale is duly confirmed and satisfaction of decree is entered and subsequently the suit under Order 21 Rule 63 by the claimant against the decree holder, auction purchaser and the judgment-debtor is decreed and the title to the property purchased by the decree-bolder is declared with the claimant, then no formal order for setting aside the sale is required and the decree-holder can proceed to execute his decree afresh. It was observed in that case that both the decree-holders and the claimant would be entitled to ask the executing Court to place them in status quo ante and it was the duty of the Court to grant the relief in exercise of its inherent powers. In Gobardhan vs. Sukhamoy (1951 Calcutta 481) the learned Judges of the Calcutta High Court after pointing out the nature of a suit under Order 21 Rule 58 and Order 21 Rule 103 have observed that if the plaintiff in such a suit succeeds, it would be the duty of the executing Court to restore status quo ante and to grant him such relief as he may be entitled in the exercise of its inherent jurisdiction. To the same effect is the decision in 1939 Bombay 508.
3. From what has been said above it is obvious that the result of the decision of this Court in Civil Second Appeal No. 6 of 1952 holding that the property in suit was not liable to attachment and sale in execution of the first three non-applicants' decree against Jagannath, is, that the sale of the property in favour of the decree-holder-non-applicants stands vacated ipso facto and the decree-holders are entitled to execute their decree afresh against Jagannath and further the applicant is entitled to obtain possession of the property from the decree-holders, who purchased it. The executing Court which sold the property to the decree-holders, and gave them possession of it, is bound in the exercise of its inherent powers to restore possession of the property to the applicant when he makes that prayer. In the present case the applicant no doubt made an application for execution of the decree of this Court in Civil Second Appeal No. 6 of 1952 in so far as it related to costs. In that application he also made a prayer for obtaining possession of the property to which he was entitled on the stength of the decision of this Court in Civil Second Appeal No. 6 of 1952. That application was to the Court of Civil Judge Second Class, Shivpuri, that is the Court which sold the property to the decree holders in execution of their decree against Jagannath. The fact that the applicant did not make a separate application to that Court for the restoration of possession of the property by the Court in exercise of its inherent powers and made a prayer in the application for execution of decree for costs awarded by this Court, is merely a matter of form and not of substance. The form in which the applicant has made the prayer for obtaining possession of the property, though defective cannot be made a ground for refusing him the possession of the property to which he is clearly entitled under the decision of this Court in Civil Second Appeal No. 6 of 1952.
4. Mr. Bhagwandas Gupta learned Counsel for the decree-holders urged that the applicant could not obtain possession of the property as Jagannath was the owner of It and the applicant was only a mortgagee and that the sale in favour of the decree-holders could be regarded as a sale of the equity of redemption of that mortgage. This objection was raised by the decree-holders in a petition (Civil Review No. 6 of 1954) for a review of the decision in Civil Second Appeal No. 6 of 1952. In that petition the decree-holders prayed that in Civil Second Appeal No, 6 of 1952 this Court should have made the declaration that the property in question belonging to Jagannath was liable to attachment and sale but that attachment and sale had no effect on the right of the applicant's father as the mortgagee of that property. The review petition was rejected on the ground that what was attached and sold in the execution proceedings was the property itself and not the equity of redemption of the mortgage of that property in favour of the applicant's father. The decree-holders cannot, therefore, now resist the delivery of possession of the property on the ground that they are purchasers of the equity of redemption. As I have pointed out above it is open to the decree-holders to execute their decree afresh. In the fresh execution proceedings the decree-holders are at liberty to have the equity of redemption of the mortgage sold in execution of their decree against Jagannath. As purchasers of the equity of redemption the decree holder cannot obtain possession of the property, if under the mortgage, the mortgagee is entitled to retain it.
5. For the above reasons this revision petition is accepted, the order dated 17th May 1955 of the Civil Judge Second Class, Shivpuri is set aside with the direction that the applicant be put in possession of the property purchased by the decree-holders and which is at present in their possession. The applicant shall have his costs here and in the Court below.