The Judgment of the Court was as follows:—
The question raised in this Rule is whether an ad valorem Court-fee is payable upon the plaint in a suit by a person who had preferred a claim to properties attached in execution of a decree, which was rejected by the Court.
The Petitioner who was the Plaintiff in the suit paid a Court-fee of Rs. 10 for a declaration of his title to the properties, and annas 12 for an injunction.
It appears that when certain properties of the judgment-debtor were attached in execution of a decree for money by the Opposite Party Nos. 1 to 8, the Petitioner preferred a claim on the ground that the properties were purchased by him, and did not belong to the judgment-debtor. The 26th February 1921 was fixed as the date for hearing the claim. On that day a petition was put in on behalf of the claimant for time to enable him to produce his kabala. The decree-holder Opposite Party was present with his witnesses. The Court was of opinion that the petition was not a bonâ fide one and rejected it. From another order on the same day, it appears that nobody appeared for the claimant though repeatedly called. The order of the learned Subordinate Judge is as follows:—“The decree-holder Opposite Party is ready with pleader and witnesses. The petition of claim is rejected with costs and Rs. 8 as pleader's fee and the claim case No. 3 of 1920 be dismissed.”
The first question is whether the order in the claim case was conclusive subject to the result of a regular suit as provided in Or. XXI, r. 63, C.P.C
There are a large number of cases on the question whether one year's rule of limitation contained in Art. 11 of the Limitation Act is applicable to a suit brought by a person whose claim has been rejected without investigation. That question does not arise in the present case except in so far as it has a bearing upon the question whether an order rejecting a claim under such circumstances is conclusive subject to the result of a regular suit. The decisions on the point under the former Codes were numerous and they were not uniform. See the cases collected in Kallar Singh…Defendant, *; v. Toril Mahton & Anr.…Plaintiffs, (1). See also Rahim Bux v. Abdul Kader (2).
In the case of Jugal Kishore Marwari v. Ambica Devi (3), where a claim preferred under Or. XXI, r. 58 was dismissed for non-prosecution and the property was sold, Mookerjee and Beachcroft, JJ., held that the only remedy of the claimant after his claim was dismissed under Or. XXI, r. 63 though for default was by a suit. The learned Judges observed “No doubt in relation to the question of limitation applicable to a suit of the description mentioned in r. 63, it has been held that Art. 11 of the second schedule of the Limitation Act does not apply if the application has been refused without an investigation on the merits, Kallar Singh…Defendant, *; v. Toril Mahton & Anr.…Plaintiffs, . Upon this point, however, there is a divergence of judicial opinion and there is weighty authority in support of the view that where an application has been dismissed, with or without investigation, a regular suit, if instituted, must be commenced within one year from the date of such order. Gooroo Das v. Sona Monee (4), Sreemunto Hazrah v. Tajooddin (5), Tripura S. Onduree v. Ijjatoonnissa (6) and Sadat Ali v. Ramdhone (7). But it is not necessary for our present purpose to express any opinion upon this question. It is sufficient to hold that, on the face of r. 63 the order of refusal is plainly final till a regular suit has been instituted and successfully prosecuted.
In the case of Nagendra Lal Choudhuri v. Fani Bhusan Das , where the claim was rejected for default, the learned Judges referring to the change in the wording of Or. XXI, r. 63 as compared with that of sec. 283 of the Code of 1882, and the corresponding change in Art. 11 of the present Limitation Act, observed that the decisions under Art. 11 of the Limitation Act of 1877 are no longer of authority. They held that all that is now necessary is that a claim should be preferred under r. 58 and that there should be an order either allowing or rejecting it. The party against whom the order is made may then bring a suit in the language of r. 63 “to establish the right which he claims to the property in dispute,” or in the language of Art. 11 of Sch. II of the Limitation Act, 1908, to “establish the right which he claims to the property comprised in the order,” and the suit must be brought within the year allowed by the Art. 11 irrespective of whether any investigation took place or not.
It is clear therefore that an order dismissing a claim for default is an order within the meaning of Or. XXI, r. 63 and subject to the result of a regular suit is conclusive.
In the case of Phul Kumari v. Ghanshyam Misra , where a claim having been rejected, a suit was brought for declaration of the Plaintiff's right to the property and for an injunction restraining the Defendant from executing his decree against the property claimed, it was held by the Judicial Committee reversing the decision of the Courts below that the suit was one under sec. 283, C.P.C, for which the proper Court-fee was that prescribed by sub-sec. (1) of Art. 17, Sch. II of the Court Fees Act, namely, Rs. 10 for a “suit to alter or set aside a summary decision or order of a Civil Court not established by Letters Patent.” It does not appear that there was a dismissal for default in that case; but as pointed out in the case of Nagendra Lal Chondhuri v. Fani Bhusan Das , under the present Code any order rejecting a claim whether upon investigation or for default would come under the purview of Or. XXI, r. 63. And if that is so, the observations of the Judicial Committee referred to above would apply cc either case.
There is no definition of “summary decision or order” in the Court-fees Act; but in the case of Daya Chand Nemchand v. Hem Chand Dhuran Chand (10), Sir M.R Westropp, C.J, in delivering the opinion of the majority of the Full Bench said. In the absence of any definition in the Court-Fees Act of the term “summary decision or order,” we should rather be disposed to regard it as “a decision or order not made in a regular suit or appeal.” And further on he observed “Without positively binding ourselves to the proposition that every decision or order not made in a regular suit or appeal is a summary decision or order, we are clearly of opinion that? decisions as to the removal or retention of attachments pronounced under sec. 246 of Act VIII of 1859 are summary decisions or orders.”
No doubt the facts of that case are different from those of the present, as there was a decision in the claim case. We have referred to that case only for the meaning of the words “summary decisions or orders.” If, as pointed out in that case, the words “summary decision or order” mean a decision or order not made in a regular suit or appeal, then the present case would fall within the words “summary order” made by the Court.
It is unnecessary, however, to rely upon the observations in that cage. Having regard to the decision of the Judicial Committee in Phul Kumari v. Ghanashyam , as to the article of the Court-fees Act applicable to suits under sec. 283 of the Civil Procedure Code, and to the decision in Nagendra Lal v. Fani Bhusan , that the provisions of Or. XXI, r. 63 are applicable to all orders passed upon claims preferred under r. 58, whether upon investigation or for default, we think that the case falls under Art. 17, Sch. II of the Court-fees Act and that the proper Court-fee payable is Rs. 10.
We ought to point out, however, that the plaint in the present case is open to the same observations which were made by the Judicial Committee in the case of Phul Kumari v. Ghanashyam . But for the reasons given by their Lordships in that case, we think the suit may be treated as substantially one under Or. XXI, r. 63, and therefore falls under Art. 17, Sch. II of the Court-fees Act.
The Rule is made absolute and the order of the Court below is set aside.
No order as to costs.
S.C.M
Rule made absolute.