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TMI Blog1971 (11) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... order. Mr. Das appearing for the petitioner has argued that no leave under section 171 is necessary to institute a suit under order 21, rule 63. His contention is that a suit under order 21, rule 63 is a suit by way of defence and is merely a continuation of the proceedings under order 21, rule 58. Learned advocate primarily relied on a Division Bench judgment of this court in Kartic Chandra Pal v. Noakhali Union Bank Ltd. [1969] 39 Comp. Cas. 309 ; AIR 1969 Cal. 158. In this case it has been held that where a decree in favour of a bank in liquidation is transferred by the High Court to another court for execution, the executing court has jurisdiction to decide a claim under order 21, rule 58, of the Code, notwithstanding section 45B of the Banking Companies Act and no leave under section 171 of the Indian Companies Act, 1913, is necessary to prefer such a claim. The Division Bench is of the view that the transfer order carries with it also the necessary leave under section 171 to proceed with the execution including consideration of claims and objections thereto and no leave or fresh leave under section 171 is therefore necessary. It is apparent that this case did not go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff in that suit. In these premises, according to Mr. Das, no leave under section 171 is necessary to file a suit under order 21, rule 63. It seems to us that this contention of counsel for the petitioner cannot be accepted. Looking at the relevant provisions of the Code it appears that the execution proceedings come to an end with the passing of an order upon investigation of claims to, and objection to attachment of, attached property under order 21, rule 58, so far as the objector is concerned. This order is conclusive subject to the result of the suit, that may be instituted within the prescribed time under order 21, rule 63. The suit under order 21, rule 63, is in the nature of fresh proceedings de hors the execution. The scope of this suit, as we shall see later, is different and the forum of the suit may also be different depending on jurisdictions of courts concerned. We would further point out that in the Allahabad case mentioned above a decree was passed against the defendant and the defendant wanted to escape the liability imposed by the decree by making an application by way of review. And the question arose as to whether for a review application leave under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court had to consider this question in Sawai Singhai Nirmal Chand v. Union of India AIR 1966 SC 1068 ; [1966] 1 SCR 986 (SC) , and had expressly overruled all decisions which have held that suits under order 21, rule 63, did not attract the provisions of section 80 of the Code. We shall have occasion to advert to the Supreme Court's judgment at a subsequent stage. The next case of Mr. Das is the case of the Madras High Court in V. K. Kelu Achan v. Thandavan Chettiar AIR 1933 Mad. 340. A receiver was appointed under section 92 of the Code. A decree was passed and in execution of the decree certain crops were attached. The plaintiff put in a claim to the property, but it was dismissed. He then filed a regular suit to claim his share in the property. The Madras High Court held that sanction to sue the receiver was not necessary for the suit and that, even if it were necessary, sanction of the subordinate court was sufficient. We are of opinion that the principles governing leave to sue a receiver do not apply to a leave to sue a liquidator. This court in Official Liquidator v. Commissioner of Income-tax [1971] 41 Comp. Cas. 477 ; [1971] 80 ITR 108 ; AIR 1970 Cal. 349, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g this question in the affirmative, the Privy Council observed that the differences between the words used in the plaint in the case before it and the words used in the relevant article of the Court-fees Act, was merely verbal. In the plaint, the plaintiff had 'categorically asked from the court the several decrees which she had asked from the subordinate judge, and which the subordinate judge had refused'. In other words, the plaint did not, in terms, ask for the setting aside of the said decrees or reversing them. The Privy Council did not attach any importance to this verbal difference and held that, in substance, the plaint was one filed with the object of getting a summary decision of the court set aside as contemplated by section 283 . . . Says the Privy Council,'. . . both parties have treated the action as if it were not simply a form of appeal, but as if it were unrelated to any decree forming the cause of action'. In other words, the effect of the observations made by the Privy Council is just this that when a suit is brought under section 283, it is no more than a suit to set aside a summary decision by which the plaintiff feels aggrieved. It would be noticed that the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed in the suit under order 21, rule 63. When, therefore, a court on an application made to it under order 21, rule 58, has passed an order in respect of property situate outside its jurisdiction, a suit under order 21, rule 63, cannot be entertained by such court as the suit falls within section 16( d ) of the Code of Civil Procedure; that is to say, that suit, subject to the pecuniary or other limitations prescribed by law, for the determination of any other right to or interest in immovable property, shall be instituted in the court within the local limits of whose jurisdiction the property is situate: vide Daulatram Mohandas v. Sugrabai Rajjabali Herra [1966] 68 Bom. LR 886. The nature of a suit under order 21, rule 63, being entirely different from the nature of a proceeding under order 21, rule 58, the Supreme Court in Sawai Singhai's case ( supra ) came to the conclusion that in order to institute a suit under order 21, rule 63, notice under section 80 of the Code must be given. We may, incidentally, mention that the language of section 80, so far as it is relevant for our purpose in this case, bears striking resemblance to that of section 171 of the Indian Compani ..... X X X X Extracts X X X X X X X X Extracts X X X X
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