Beni Mahto And Another Decree-Holders v. Chaturgun Sao Objector Opposite Party.

Rowland, J.:— The petitioners brought a suit for money on 11th March 1934, and obtained an order for attachment before judgment. Some property was attached on 17th March 1934. Decree was obtained on 4th September 1934, and the petitioners applied for execution on 7th August 1935, against the property already attached. Notice was issued under O. 21, R. 66 of the CPC, and the opposite party, on 24th September 1935, preferred a claim to the property which the Munsif entertained, purporting to act under O. 21, R. 58 of the CPC, and allowed. The point taken, in this application is that the Munsif had no jurisdiction to entertain under O. 21, R. 58 a claim in respect of property which had not been “attached in execution of a decree”. This property was attached before judgment, and it is said any claim to it ought to have been preferred under O. 38, R. 8 and should have been so preferred before the judgment was pronounced. Once the suit has been decreed no claim under this rule can be entered.

2. At the hearing before us it was suggested for the opposite party that once a decree has been passed and execution taken property attached before judgment should be deemed to have been attached in execution. This seems to me to be a very debatable proposition. I would prefer to approach the matter from another angle.

3. First, I would point out that neither in O. 21, R. 58, nor in O. 38, R. 8 are there any words conferring on a third party owner of property the right to make a claim. What both these rules say is that “where any claim is preferred” certain procedure shall be followed. It seems to me that neither of these rules create any right in the party but by implication they both recognize the right of any owner of property to say “This is mine”. This right does not need to be created by statute. It is there. If there was a lacuna in the Code, that would not take away the right of an owner of property in his property. Secondly, Mr. Baldeva Sahay's ingenious argument for the petitioners ignores the fact that O. 38, R. 8 gives directions as to procedure “where any claim is preferred to property attached before judgment”. There are no qualifying words limiting its application to a claim preferred before the judgment. The language of the rule is general and provided the attachment was before judgment a claim preferred at any time is within the language of the rule. The Court was, therefore, within its duty in investigating the claim in the manner hereinbefore provided for the investigation of claims to property attached in: execution of a decree for the payment of money; that is to say under O. 21, R. 58 and succeeding rules. This view is supported by 38 Cal 448.1 Therefore the Munsif was entitled to deal with the claim under O. 21, R. 58. It was, of course, within his power to refuse investigation under the proviso to R. 58(1) if he considered “that the claim or objection was designedly or unnecessarily delayed.” But as pointed out in the Calcutta decision just cited, there was nothing unreasonable in the claimant's conduct if he waited until there was an actual threat to his property and preferred his claim then. It is not necessary for any person who has a claim to property attached before judgment to prefer a claim at that stage though he may do so if he wishes under the provisions of O. 38, R. 8. His failure to do so, however, does not necessarily amount to any negligence which would justify his subsequent claim being dismissed under the proviso to O. 21, R. 58(1). I would dismiss the application with costs: hearing fee two gold mohurs.

Fazl Ali, J.:— I agree. In my judgment O. 38, R. 8 of the CPC, fully covers the present case. In the first place this rule makes it clear that a claim preferred in regard to property attached before judgment will be entertained in the same manner as a claim preferred in regard to property attached in execution of a decree; and, secondly, there is nothing in this rule to show that the claim must be made before the decree is passed. Once the right to prefer a claim is recognized it will evidently be an undue curtailment of that right to hold that it will not be entertained unless it is preferred before the decree is passed. The claimant may prefer to wait until the decree is passed, for the suit may be dismissed and the attachment will then cease ipso facto. Thus the effect of this rule seems to be that the claim will have to be investigated whether it is preferred before or after the decree. In the present case it was preferred after the decree and it cannot be rejected merely because the petition of the claimant purported to be one under O. 21, R. 58. If, the claimant has a right to have his claim investigated, the right cannot be denied even if it be supposed that he has quoted a wrong section.

K.B/A.L

4. Application dismissed.