The Court made the following
Order of Reference to a Full Bench:— Before disposing of this appeal we wish to refer the following question for the opinion of the Full Bench, viz.:—
Whether when a debt not secured by a negotiable instrument is attached under section 268, Civil Procedure Code, a claim can he preferred by a third party, and investigated under section 278, Civil Procedure Code, and, if so, whether an order disallowing the claim is subject to the operation of section 283, Civil Procedure Code, and article 11 of Schedule 2, Limitation Act.
The question must be taken to have been decided in the negative in the case of Basavayya v. Syed Abbas Saheb (1), but we are doubtful, as to the correctness of that decision, and the, question is of such wide importance that we think it desirable that it should be settled by a Full Bench.
The case came on for hearing in due course before the Full Bench constituted as above.
C.V Anantakrishna Ayyar (for P.R Sundara Ayyar) for appellant.—The suit is barred by limitation. Section 278 speaks of “any property” attached in execution. Section 266 makes it clear that a debt is “property.” A reference to sections 268 and 301 shows how a debt is to be attached and how possession thereof is to be given to the purchaser. Sections 278 to 283 are; wide enough to cover debts. The Privy Council has decided that the Code is exhaustive (Gopal Chunder Bose v. Kartick Chunder Dey ). If sections 280 to 283 do not cover cases of debts, anomalies would follow. The word “possession” is used in these sections in its legal, technical sense. A creditor is in law seized of, or is in possession of, his debt. A mortgagor is in possession of his equity of redemption, though physical possession of the property may be with the usufructuary mortgagee. Reference may he made to other sections of the Code where the word “possession” is used, but it is submitted that section 855 is conclusive of the matter. It says that a receiver “shall possess himself of all such property” including “debts.” Section 246 of Act VIII of 1859 was differently worded.
T.R Ramachandra Ayyar and K.R Subrahmania Sastri for the respondent.—The suit is not barred by limitation. Article 11 of the Limitation Act does not apply, for sections 280 to 283 do not apply to cases where debts are attached. It is only if sections 280 to 283 Civil Procedure Code, apply to the attachment of debts not secured by any negotiable instrument, that article of the Limitation Act would apply. Sections 280 to 283 speak of possession, and so they apply only to cases of property of which there could be possession; that is, those sections apply only to cases of specific moveable or immoveable property. The word “possession” is used in these sections in its popular sense of “physical possession.” [Bhashyam Ayyangar, J.—Should it not be taken that the word is used in its legal sense? Whenever the Legislature means “physical possession, it expressly says so—see for example article 10 of the Second Schedule of the Limitation Act]. We rely on Mussamut Rambutty Kooer v. Kamessur Pershad , Basavayya v. Syed Abbas Saheb (2), Harilal Amthabhai v. Abhesang Meru (3), Monmohiney Dassee v. Radha Kristo Dass* (4), and Ibrahim Mullick v. Ramjadu Rakshit (5). The definition of the word possession in the ‘Century Dictionary’ also supports our contention. [Bhashyam Ayyangar, J., referred to the definition of the word possession, given in Anderson's ‘Law Dictionary,’ Webster's ‘Dictionary’ and Stroud's ‘Judicial Dictionary,’ and suggested that “possession” meant such possession as the nature of the thing permitted]. We submit that section 301, Civil Procedure Code, shows that the Legislature was aware that a “debt not secured by a negotiable instrument” was not capable of “possession” as ordinarily understood, and so a specific mode of delivery of such a debt is pointed out for the purpose of execution. If sections 278 to 283, Civil Procedure Code, are made applicable to all debts and other intangible things, it is submitted that the consequences would be serious. We submit that Basavayya v. Syed Abbas Saheb is rightly decided.
The appellant was not called upon to reply.
The Court expressed the following
Opinion.— Our answer to the questions put toms is in the affirmative. In our opinion sections 278 to 281 of the Civil Procedure Code are not restricted to properties, under attachment which are capable of tangible or physical possession.
The term “possession” is, no doubt, one which is used in widely different senses in dealing with different subjects, and refers sometimes to tangible or physical possession and sometimes to constructive possession, or possession in law. In Webster's. ‘Dictionary’ the legal meaning of “possession” includes “the having or holding of property in one's power or command.” See also Anderson's ‘Dictionary of law,’ page 790.
In our opinion it would be unreasonable to restrict the meaning of the word “possessed” in section 279, and of the word “possession” in sections 280 and 281 to merely tangible or physical possession. Such restricted meaning would, we think, unduly narrow the operation of section 278 which relates to claims preferred to and objections made to the attachment of, “any property attached.” Section 266 specifies a debt as one species of property which is liable to attachment, and section 268 prescribes the mode in which a debt is to he “attached. Section 301, which vests a debt sold in execution in the purchaser, refers to such transfer of the debt as “delivery” of the debt. No reason can be suggested for excluding from the beneficient operation of the claim sections of the Code debts and other species of intangible property. We may also refer to section 355 of the Code in which the word “possess” is clearly used as applicable not only to tangible property but also to debts and other intangible property.
We are therefore of opinion that the words “possess” and “possession” in the claim sections of the Code include constructive possession, or possession in law, of debts and other intangible property, and that the decision to the contrary effect in Basavayya v. Syed Abbas Saheb is erroneous.