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Case Number

Appeal from Appellate Decree no. 921 of 1943, from a decision of Babu A.C Banarji, Subordinate Judge of Monghyr, modifying a decision of Babu H.N Sinha, Munsif at Monghyr

Attorney(S)

P.R Das and P.K Bose, for the appellants.
B.N Rai, K.K Sinha and Hanifur Rahman, for the respondents.

Judges

Fazl Ali, C.J
Chatterji, J.

Acts

article 11 of the first schedule to the Limitation Act.
ORDER 21 RULE 63 CIVIL PROCEDURE CODE
Order 21, rule 58, Code of Civil Procedure,
provisions of Order 21, rule 63,
provision of Order 21, rule 63.
provisions of rule 60.
Order 21, rule 63,to
Order 21, rule 63,
Order 21, rule 58,
Order 21, rule

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Smart Summary

Judgment Summary — Chatterji, J.

Factual and Procedural Background

The dispute concerns a 4 annas share in a holding of 72.37 acres originally owned in equal shares by four persons: Bansi, Lakshmi, Kheyali and Ganga. The plaintiffs claimed to have purchased the entire interest of these four at a certificate sale dated 10 May 1935. Prior to the certificate sale, a 12 annas interest (comprised of the shares of Bansi, Kheyali and Ganga) had been sold by private sale to Sureswar Singh and others.

In 1936 Sureswar Singh and others brought Title Suit No. 10 of 1936 against the plaintiffs (and impleaded as defendants the heirs of Lakshmi, who are the present defendants 2nd party) seeking possession of the 12 annas they alleged to have purchased and declaring that the plaintiffs acquired no title under the certificate sale because they were farzidars of the certificate-debtors. That suit was decreed on 12 August 1939 but was subsequently compromised on appeal.

Separately, in November 1935 the defendants 1st party obtained a money decree for Rs. 7,751 against the defendants 2nd party (heirs of Lakshmi). In 1937 the defendants 1st party executed that decree and attached the contested 4 annas share. The plaintiffs filed a claim under Order 21, rule 58 of the Code of Civil Procedure, which was allowed on 17 January 1938. The defendants 1st party allowed that execution to be dismissed for default.

In 1939 the defendants 1st party initiated a fresh execution, again attaching the disputed 4 annas share. The plaintiffs again filed a claim under Order 21, rule 58 but that claim was dismissed for default on 2 March 1940 (the senior plaintiff being in jail). The property was sold on 6 March 1940. The plaintiffs brought the present suit under Order 21, rule 63 on 15 May 1940, grounding their title on the certificate sale of 10 May 1935.

The trial Court (Munsif) found that while the plaintiffs were mere farzidars and had not acquired title by the certificate sale, the defendants 1st party had failed to institute a suit under Order 21, rule 63 to challenge the earlier order (17 January 1938) allowing the plaintiffs' claim; therefore that earlier order had become conclusive and the Munsif decreed the suit. On appeal the Subordinate Judge affirmed factual findings but modified the decree: he held the trial Court should have limited the decree to relief that the property was not liable to attachment and that the attachment and sale in Execution Case No. 94 of 1939 were illegal and invalid. The defendants 1st party appealed to the present Court; the plaintiffs cross-objected to aspects of the lower appellate decision (challenging the refusal to declare their title to the disputed property).

Legal Issues Presented

What is the true effect of Order 21, rule 63 of the Code of Civil Procedure — i.e., whether an order made on a claim under Order 21, rule 58 (releasing property from attachment) becomes conclusive only as to possession at the date of attachment or whether it can be conclusive as to the right (title) to the property between the parties unless the decree-holder institutes a suit under rule 63 within the prescribed period.
Whether the defendants 1st party are precluded from disputing the plaintiffs' right to the disputed property because they did not institute a suit under Order 21, rule 63 within one year from the order allowing the plaintiffs' claim in the earlier execution.
Whether the decision in Title Suit No. 10 of 1936, which found the plaintiffs to be farzidars of the certificate-debtors, operates as res judicata so as to affect the conclusiveness of the earlier order allowing the plaintiffs' claim.
What effect, if any, does the plaintiffs' choice to prefer a fresh claim in the 1939 execution (which was dismissed for default) have on their entitlement to relief in the present suit under Order 21, rule 63?

Arguments of the Parties

Appellants' (Defendants 1st party) Arguments — summarized

The lower Courts should have dismissed the plaintiffs' suit altogether because on the factual finding that the plaintiffs have no title to the disputed property, no relief ought to have been granted.
The order made under rule 60 allowing a claim under rule 58 is conclusive only as to possession at the date of attachment and not as to title; rule 60 and rule 61 provide only a summary inquiry into possession and do not determine ultimate title.
They relied on observations in Najimunnessa Bibi v. Nachruddin Sardar to support the contention that the order is limited to possession and that a claimant is not always required to sue under rule 63 where the attachment ceases within one year.
The plain language of Order 21, rule 63 does not warrant a distinction between the position of a claimant and a decree-holder; therefore the defendants 1st party should not be required to bring a suit under rule 63 in circumstances where the claimant might be excused.
The earlier decision in Title Suit No. 10 of 1936 (that plaintiffs were farzidars) undermines the conclusiveness of the earlier order allowing the plaintiffs' claim.
Because the plaintiffs lodged a fresh claim in 1939 which was rejected for default, the plaintiffs must suffer the consequences of that unsuccessful step and should not obtain the present relief.

Respondents' (Plaintiffs) Arguments — summarized

The plaintiffs claim title to the disputed 4 annas share by virtue of the certificate sale dated 10 May 1935 and that they were in possession in their own right at the time of attachment.
Because the defendants 1st party did not institute a suit under Order 21, rule 63 within one year from the order of 17 January 1938 allowing the plaintiffs' earlier claim, that order became conclusive and precludes the defendants 1st party from challenging the plaintiffs' right to the property.
The plaintiffs submitted that the attachment and sale effected in Execution Case No. 94 of 1939 were illegal and invalid because they occurred after the earlier order had become conclusive.
After the dismissal of the plaintiffs' second claim by default, the plaintiffs properly invoked rule 63 by instituting the present suit to establish the right which they claimed to the property and to vindicate the earlier conclusive order.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Najimunnessa Bibi v. Nachruddin Sardar (Calcutta case; Rankin, J.)	Principle that a claimant who has had his claim dismissed need not always bring a suit under Order 21, rule 63 where the execution to which the claim related is dismissed soon afterwards (i.e., the claimant is not required to sue if the attachment ceases within one year); rules 60 and 61 effect only a summary inquiry into possession as distinct from a full trial of title.	The court analyzed Rankin, J.'s observations and held they arise in a different context (claimant whose claim was dismissed and where the execution case itself was dismissed). The court found those observations not directly helpful to the present case involving the decree-holder and therefore did not adopt them to limit the conclusiveness of the earlier order to possession only.
Habib Ullah v. Mahmoud (Allahabad High Court Full Bench)	Distinction between claimant and decree-holder: if attachment ceases within one year from dismissal of a claimant's claim, the claimant is not barred by rule 63; however the decree-holder is not relieved from instituting his suit under rule 63 even if the attachment is later withdrawn.	The court treated this Full Bench decision as authoritative and consistent with a long course of High Court decisions. It relied on this distinction to refuse to extend the claimant's exception to the decree-holder; the decision supported requiring a decree-holder to bring suit under rule 63 to challenge an order allowing a claimant.
Kaura v. Ram Chand; Nawal Kishore v. Khiyali Ram	The proposition cited: "if a person chooses to take advantage of a summary procedure, he must suffer its disadvantages as well."	These cases were referred to by counsel for the appellants to argue that plaintiffs who used summary remedies must accept attendant disadvantages when unsuccessful. The court noted the principle but proceeded on the ground that the plaintiffs' primary right (the conclusiveness of the earlier order) was established, so the plaintiffs were entitled to the relief granted by the lower appellate Court.
Title Suit No. 10 of 1936 (Sureswar Singh and others v. plaintiffs and defendants 2nd party)	A decision in which it was held that the plaintiffs were farzidars of the certificate-debtors in respect of their purchase; raised in argument as potentially affecting res judicata.	The court observed that the decision in Title Suit No. 10 of 1936 cannot operate as res judicata against the defendants 1st party because they were not parties to that suit and the 4 annas share in litigation here was not in dispute there. Thus that decision does not affect the conclusiveness of the execution claim order of 1937.

Court's Reasoning and Analysis

The Court's analysis centered on the interpretation and practical effect of Order 21, rule 63. The Court began by quoting rule 63 and then considered the appellants' primary contention that an order allowing a claim under rule 58 (and made pursuant to rule 60) is conclusive only as to possession at the date of attachment and not as to title.

The Court examined the textual relationship between rule 60 (which prescribes the summary inquiry to determine whether the attached property was in the possession of the judgment-debtor when attached) and rule 63 (which makes the order "conclusive" unless a suit is brought). The appellants relied on observations in Najimunnessa Bibi v. Nachruddin Sardar to support the narrow, possession-only interpretation. The Court rejected that reliance because Rankin, J.'s observations were made in a distinct factual context — namely a claimant whose claim was dismissed and where the execution was shortly thereafter dismissed — and were meant to show that such a claimant need not pursue a suit under rule 63 in those limited circumstances.

The Court relied upon the Full Bench decision in Habib Ullah v. Mahmoud and a consistent line of High Court authority to draw a clear distinction between the position of a claimant and that of a decree-holder. It accepted the established approach that a claimant may be excused from instituting a suit under rule 63 where the attachment ceases within one year from the dismissal of the claim, but a decree-holder is not similarly excused and must bring a suit under rule 63 to challenge the conclusive effect of an order allowing a claim.

Applying these principles to the facts, the Court noted that the defendants 1st party had not instituted a suit under rule 63 within one year from the 17 January 1938 order allowing the plaintiffs' claim in the 1937 execution. Consequently, that order became conclusive between the plaintiffs and the defendants 1st party. The Court reasoned that the practical effect of the order allowing the plaintiffs' claim was a determination that the disputed property belonged to the plaintiffs (as purchasers at the certificate sale) and not to the defendants 2nd party; once that order became conclusive, the defendants 1st party could not assert the contrary.

The Court expressly rejected the argument that the earlier order could be conclusive only as to possession; it observed that rule 60 refers to the material "reason stated in the claim," and that the execution Court, when allowing the plaintiffs' claim, must have been satisfied that the plaintiffs were in possession in their own right as purchasers. To challenge that order the decree-holder was obliged to "institute a suit to establish the right which he claims to the property" under rule 63, which necessarily involves consideration of title rather than possession alone.

The Court also found that the earlier Title Suit No. 10 of 1936 could not operate as res judicata to nullify the conclusiveness of the execution claim order because the defendants 1st party were not parties to that title suit and because the 4 annas share in dispute here was not in issue in that earlier suit.

Finally, addressing the fact that the plaintiffs had later preferred a fresh claim in 1939 which was dismissed for default, the Court held that the plaintiffs properly brought the present suit under rule 63 to vindicate the earlier conclusive order. Because the attachment in 1939 occurred after the earlier order had become conclusive, the defendants 1st party were precluded from asserting a right to attach and sell the property in Execution Case No. 94 of 1939.

Holding and Implications

HOLDING: The appeal by the defendants 1st party is dismissed with costs; the cross-objection by the plaintiffs was not pressed and is dismissed without costs. The Court affirmed that where a decree-holder fails to institute a suit under Order 21, rule 63 within the prescribed period after an order allowing a claimant's claim under rule 58 has been made, that order becomes conclusive between the parties and precludes the decree-holder from asserting the contrary right.

Implications:

Direct effect on the parties: The defendants 1st party are precluded from challenging the plaintiffs' right to the disputed 4 annas share because they did not bring a suit under Order 21, rule 63 within the relevant period; the attachment and sale effected in Execution Case No. 94 of 1939 are treated as illegal/invalid vis-à-vis the plaintiffs, as they were effected after the earlier order became conclusive.
The Court affirmed the existing line of authority distinguishing the positions of claimants and decree-holders under Order 21; it declined to extend the claimant's exception to decree-holders.
No broader or novel precedent was announced beyond the interpretation and application of the established authorities described: the decision enforces the consequence that failure by a decree-holder to sue under rule 63 within the applicable period renders the execution-court's order conclusive as between those parties.

Appeal and Cross-objection dismissed.

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Premsukh v. Satyanarain

Chatterji, J.:— This appeal which arises out of a suit under Order 21, rule 63 of the Civil Procedure Code is by the defendants 1st party.

The subject-matter in dispute is 4 annas share in a holding of 72.37 acres which admittedly belonged to four persons, Bansi, Lakshmi, Kheyali and Ganga in equal shares. The plaintiffs claim to have purchased the entire interest of these four in the holding on 10th May, 1935, at a certificate sale for arrears of rent of the holding. Previous to this, however, the 12 annas interest of Bansi, Kheyali and Ganga had been purchased from them by Sureswar Singh and some others under private sale. In 1936 these purchasers. Sureswar and others brought a suit (Title Suit no. 10 of 1936) against the plaintiffs, also impleading as defendants the present defendants 2nd party, who are heirs of Lakshmi, deceased, for possession of their purchased 12 annas share on a declaration that the plaintiffs acquired no title to the same under the certificate sale, being farzidars of the certificate-debtors. This suit was decreed on the 12th August, 1939, but on appeal to the High Court, the parties entered into a compromise.

In the meantime in November, 1935, the defendants 1st party obtained a money decree for Rs. 7,751 against the defendants 2nd party, the heirs of Lakshmi who was then dead. In 1937 the defendants 1st party took out execution of this decree against the defendants 2nd party and attached their 4 annas share, now in dispute in the aforesaid holding. The plaintiffs preferred a claim under Order 21, rule 58, Code of Civil Procedure, which was allowed on 17th January, 1938. The defendants 1st party then allowed their execution case to be dismissed for default. Subsequently in 1939 they started a fresh execution in which they again attached the disputed 4 annas share. The plaintiffs again preferred a claim under Order 21, rule 58, but it was dismissed for default on 2nd March, 1940, when the plaintiff no. 1 Satyanarayan Singh, who is the father of the remaining two plaintiffs who are minors, was in jail. The disputed property was sold on 6th March, 1940. The plaintiffs then instituted the present suit under Order 21, rule 63, on 15th May, 1940. They base their title to the disputed 4 annas share on the certificate sale of the 10th May, 1935.

The suit was contested by the defendants 1st party, substantially on the grounds that the purchase at the certificate sale was a benami purchase made by the defendants 2nd party in the name of the plaintiffs who are their close relations, and, therefore, the plaintiffs did not acquire any title under that purchase, and that the decision in the Title Suit no. 10 of 1936 in which it was held that the plaintiffs were farzidars of the certificate-debtors operates as res judicata.

The learned Munsif who tried the suit held that the decision in Title Suit no. 10 of 1936 does not operate as res judicata, but he upheld the defendants' contention that the plaintiffs were mere farzidars of the defendants 2nd party and did not, therefore, acquire any title to the disputed property under the certificate sale. He, however, held that the defendants 1st party not having filed any suit under Order 21, rule 63, to set aside the order dated the 17th January, 1938, allowing the plaintiffs' claim under Order 21, rule 58, that order became conclusive between the parties with the result that the defendants were debarred from challenging the plaintiffs' title to the disputed property. In this view the Munsif decreed the suit.

The defendants 1st party preferred an appeal from the decree passed by the Munsif, while the plaintiffs filed a cross-objection challenging his finding that they did not acquire any title to the disputed property under the certificate sale. In the cross objection the plaintiffs also claimed costs of the suit which the Munsif had disallowed. The learned Subordinate Judge who heard the appeal affirmed all the findings of the learned Munsif. But he held that on the finding that the plaintiffs have got no title to the disputed property, the learned Munsif should not have decreed the Whole suit in full including the relief for declaration of the plaintiffs' title to the disputed property, but should have decreed the suit in part, in so far as it relates to the declaration that the disputed property is not liable to be attached and sold in execution of the decree obtained by the defendants 1st party against the defendants 2nd party, and that the attachment and sale of the disputed property in Execution Case no. 94 of 1939 are illegal and invalid. The Subordinate Judge accordingly allowed the appeal in part and modified the decree of the trial Court to this extent, and he dismissed the cross-objection. Hence this appeal by the defendants 1st party. The plaintiffs also have filed a cross-objection, challenging the decree of the lower appellate Court in so far as it disallowed their relief for declaration of their title to the disputed property.

The main contention raised by Mr. P.R Das on behalf of the appellants is that on the finding that the plaintiffs have got no title to the disputed property, the Courts below should have dismissed their suit altogether. But if by reason of the provisions of Order 21, rule 63, the defendants 1st party are debarred from challenging the plaintiffs' title to the disputed property, as held by the Courts below, it is quite plain that it was not open to the Courts below to go into the question whether in fact the plaintiffs have got any title.

The question, therefore, turns on the true effect of Order 21, rule 63, which reads as follows:

“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.”

Mr. Das contends that the extent to which the order is conclusive, where it is an order allowing a claim under rule 58, must be determined with reference to the provisions of rule 60. That rule shows that the only question on which the Court is to be satisfied before it can make an order releasing the property from attachment is whether for the reason stated in the claim the property was not, when attached, in the possession of the judgment-debtor. It is, therefore, said that the only question determined by the order is the question of possession at the date of the attachment, and consequently the order is conclusive only as regards possession at that date, but not as regards title. This contention is sought to be supported by certain observations of Rankin, J. (as he then was) in Najimunnessa Bibi v. Nachruddin Sardar. That was a case in which a claim under rule 58 was dismissed for default, but very soon afterwards the execution proceeding in which that claim was preferred was itself dismissed for default with the consequence that the attachment ceased. In a subsequent execution proceeding in respect of the same decree the same property was again attached and was sold. The claimant then brought a suit against the decree-holder, who became the purchaser, for confirmation of her possession and for injunction. This suit was brought considerably more than one year after the dismissal of her claim for default. The question for consideration before the High Court was whether the suit was barred by article 11 of the first schedule to the Limitation Act. Rankin and Page, JJ. held that the suit was not barred, as article 11 had no application. The principle on which that decision proceeded was stated by Rankin, J. as follows: “The principle is that the object of making a claim in execution is to remove the attachment, that when the attachment is withdrawn, that object is gained, and that, if there exists no attachment or proceeding in execution on which the order in the claim case can take effect, one is not bound to bring a suit complaining of such order”. Rankin, J. at page 557 said “Rules 60 and 61 provide then for a summary investigation into possession as distinct from a thorough trial of ultimate right”. Again at pp. 557-558 his Lordship said “Having tested the matter by the limited test provided by these rules, the execution Court is required to make an order. What then is the order it is required to make? By rule 60, the Court ‘shall make an order releasing the property, wholly or to such an extent it thinks fit, from attachment……Now, that is the order which by rule 63 is made conclusive subject to a suit”. Then at page 559 his Lordship said “But if the attachment is removed and later on another attachment is made, the question of possession is a question of possession at a different date”. It is on these observations of his Lordship that Mr. Das relies. But these observations cannot be taken out of the context. The whole object of the elaborate discussion in his Lordship's judgment was to demonstrate that an unsuccessful claimant is not required to bring a suit under Order 21, rule 63, if within one year from the date of the order disallowing his claim, the attachment against which he had preferred the claim ceases to exist by reason of the dismissal of the execution case for default. His Lordship himself recognised that the position would be different in the case where the claim is allowed and the suit under Order 21, rule 63, is to be brought by the decree-holder. At page 561 his Lordship, after laying down the above-quoted principle, observed “It is no answer at all to say that a decree-holder's suit under rule 63 has always to be brought after the attachment is removed”. It is, therefore, clear that his Lordship's observations relied upon by Mr. Das can be of no real assistance in the present case.

The same distinction was also pointed out by a Full Bench of the Allahabad High Court in the case of Habib Ullah v. Mahmoud. The facts of that case were similar to those of the aforesaid Calcutta case. The Full Bench held that if the attachment ceases to exist within the period of one year from the dismissal of the claim, it is no longer incumbent upon the claimant to file a suit for a declaration of title to the property in order to avoid the conclusiveness of the order in the claim case. Sulaiman, C.J, who delivered the leading judgment, said “It is possible to hold that there is a distinction between the position of a claimant and a decree-holder inasmuch as the position of a claimant is improved if the attachment ceases after the order is passed, whereas the position of the decree-holder is in no way altered merely because the application for execution is dismissed. In that view he must sue even if his attachment is gone”. Mukerji, J., who delivered a separate judgment agreeing with Sulaiman, C.J, observed “on the other hand, the decree-holder would not be relieved from the necessity of instituting his suit if the claimant has succeeded in the execution department. This would be the result even if the decree-holder's application for execution is dismissed for default with the result that the attachment is withdrawn”.

It is argued by Mr. Das that if, as held in the above cases, a claimant is not required to bring a suit under Order 21, rule 63, where the attachment is withdrawn within one year from the dismissal of the claim, there is no reason why the decree-holder will be required to bring such suit, when such distinction is not warranted by the plain language of Order 21, rule 63. But as pointed out by Sulaiman, J. in the above Full Bench case, all the High Courts have consistently held in a long course of decisions that Order 21, rule 63, creates no bar against the claimant, if the attachment is withdrawn within one year from the dismissal of his claim, and it is too late to go back on this long course of decisions. There is one obvious reason why the principle of these decisions should not be extended to a decree-holder's suit. If this principle were to be so extended, the result would be startling. An unsuccessful decree-holder has only to have his execution case dismissed for non-prosecution, and then to start a fresh execution and take out fresh attachment so that he may again contest the same claim which had already been decided against him in his previous execution case. He will thus be able to circumvent the express provision of Order 21, rule 63. This he cannot be permitted to do.

As the defendants 1st party did not bring any suit under Order 21, rule 63, within one year from the date of the order allowing the plaintiffs' claim under Order 21, rule 58, in the previous execution case of 1937, that order became conclusive as between them and the plaintiffs. Now what is the effect of that order? The defendants 1st party attached the disputed property as being the property of their judgment-debtors, defendants 2nd party. The plaintiffs preferred a claim on the ground that the disputed property belonged to them by virtue of their purchase at the certificate sale and was in their possession and was, therefore, not liable to attachment. The practical effect of the order allowing the plaintiffs' claim was that the disputed property was the property of the plaintiffs and not of the defendants 2nd party and was, therefore, not liable to be attached by the defendants 1st party as property of the defendants 2nd party. And when the order became conclusive, it was no longer open to the defendants 1st party to assert that the disputed property was the property not of the plaintiffs, but of the defendants 2nd party. As between the plaintiffs and the defendants 1st party, therefore, the property must now be taken to be property of the plaintiffs.

There is nothing in Order 21, rule 63, to warrant the contention of Mr. Das that the order made under rule 60 releasing the property from attachment or, in other words, allowing the claim under rule 58 will be conclusive under rule 63, only as regards possession at the date of the attachment. It is true that the ground on which the order can be made under rule 60 allowing the claim is that the attached property was not, when attached, in the possession of the judgment-debtor. But as observed by Rankin, J. in the very Calcutta case relied upon by Mr. Das, “It is impossible to separate altogether the question of possession and of title”. It is noticeable that rule 60 itself uses the words

“for the reason stated in the claim”,

which suggest that the question of possession must be determined with reference to the nature of the claim preferred. In the present case, the Court, when, it allowed the plaintiffs' claim and released the property from attachment in the execution case of 1937, must have been satisfied that at the date of the attachment the plaintiffs were in possession of the attached property in their own right as purchasers at the certificate sale. If the defendants 1st party wanted to challenge the order releasing the property from attachment, it was incumbent upon them to bring a suit under Order 21, rule 63,

“to establish the right”,

which they claimed to the property. The right which they claimed was the right to attach the property as being their judgment-debtors' property. In order to establish this right, it would be necessary for them to disprove the right in assertion of which the plaintiffs successfully preferred their claim under rule 58. It would not be enough merely to show that the judgment-debtors and not the plaintiffs were in possession at the date of the attachment. In a suit under Order 21, rule 63, the material question for determination is the question of title. The defendants 1st party, having failed to bring a suit under Order 21, rule 63, cannot be in a better position than if they had brought such suit and failed therein to establish the right they claimed. The effect of their failure to bring a suit under Order 21, rule 63, is that the order releasing the disputed property from attachment is conclusive and it is no longer open to them to assert the right which they claimed or to challenge the plaintiffs' right. It cannot possibly be held that the order is conclusive only as regards possession at the date of the attachment.

It is next contended by Mr. Das that having regard to the decision in the Title Suit no. 10 of 1936 brought by Sureswar, Singh and others against the plaintiffs and the defendants 2nd party in which it was held that the plaintiffs were farzidars, of the defendants 2nd party in respect of the purchase at the certificate sale, the previous order allowing the plaintiffs' claim in the execution case of 1937 can no longer be said to be conclusive. It is, however, frankly conceded by Mr. Das that the decision in the Title Suit no. 10 of 1936, in which the defendants 1st party were no party and the plaintiffs and defendants 2nd party were co-defendants and in which the 4 annas share now in suit was not in dispute, cannot operate as res judicata. Consequently the decision in that suit can in no way affect the conclusiveness of the order allowing the plaintiffs' claim in the execution case of 1937.

Lastly it is contended by Mr. Das that the plaintiffs, in spite of the previous order in their favour allowing their claim in the execution case of 1937, chose to prefer a fresh claim in the execution case of 1939, and this claim having been rejected, they must take the consequences. But it is to get rid of the order rejecting their claim that they brought the present suit under Order 21, rule 63. Undoubtedly in this suit under Order 21, rule 63, it is incumbent upon the plaintiffs to establish the right which they claim to the property in dispute. The right which they really claim is that the defendants 1st party had no right to attach and sell the property in the Execution Case of 1939. Admittedly the attachment in the Execution Case of 1939 was made when by lapse of one year the order allowing the plaintiffs' claim in the previous Execution Case of 1937 had already become conclusive under rule 63. The effect of that order being conclusive, as, I have already shown, is that the defendants 1st party are precluded from asserting that they had the right to attach and sell the property. Consequently the right which the plaintiffs really claim in this suit is clearly established. This right being established, the plaintiff 5 are certainly entitled to a decree, as passed by the lower appellate Court. Mr. Das refers to the cases of Kaura v. Ram Chand and Nawal Kishore v. Khiyali Ram in which it was held that “if a person chooses to take advantage of a summary procedure, he must suffer its disadvantages as well”. In the present case, the plaintiffs, being unsuccessful in the second claim case, did bring the suit under Order 21, rule 63.

All the contentions raised by the appellants fail. I would accordingly dismiss the appeal with costs.

The cross-objection has not been pressed and is, therefore, dismissed, but without costs.

Fazl Ali, C.J:— I agree.

Appeal and Cross-objection dismissed.

H.R.K

Premsukh v. Satyanarain

Judgment Summary — Chatterji, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' (Defendants 1st party) Arguments — summarized

Respondents' (Plaintiffs) Arguments — summarized

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Premsukh v. Satyanarain

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