Case Note & Summary
The Supreme Court considered an appeal arising from a declaratory suit filed in 1947 by two appellants against the first party defendants. The suit sought a declaration that certain deeds were inoperative and void and that the defendants first party had acquired no right or title thereunder. The property in dispute had been attached by a Magistrate under Section 145 of the Code of Criminal Procedure. At the date of the suit, the property was under attachment and not in the possession of any party. The trial court decreed the suit. On appeal, the Patna High Court set aside the decree solely on the ground that the appellants were not in possession at the date of the suit and the respondents were, and because the appellants omitted to claim the further relief of recovery of possession as required by the proviso to Section 42 of the Specific Relief Act, 1887. The High Court did not consider the merits. It granted a certificate of fitness, leading to the Supreme Court appeal. The central legal issue was whether a suit for declaration of title to property filed while the property stands attached under Section 145 of the Code of Criminal Procedure is competent without a prayer for delivery of possession. The appellants argued that because the property was in the magistrate's custody under attachment, they could not have asked for possession; the respondents contended that under Section 145 attachment, unlike Section 146, the magistrate holds possession for the party ultimately found to have been in possession, and thus the suit without possession relief was barred. The Supreme Court, speaking through Sarkar J., held that the suit was competent. It reasoned that where the defendant is not in possession and not in a position to deliver possession to the plaintiff, it is not necessary for the plaintiff in a suit for declaration of title to property to claim possession. In the present case, the respondents were not in possession after the attachment and were not in a position to deliver possession. The magistrate was in possession for whomsoever, and was not a party to the suit. The Court relied on Sunder Singh Mallah Singh Sanatan Dharam High School, Trust v. Managing Committee, Sunder Singh-Mallah Singh Rajput High School; Nawab Humayun Begam v. Nawab Shah Mohammad Khan, which held that the further relief contemplated by the proviso to Section 42 is relief against the defendant only; and K. Sundaresa Iyer v. Sarvajana Sowkiabil Virdhi Nidhi Ltd., which held that it is not necessary to ask for possession when property is in custodia legis. The Court noted that property under attachment under Section 145 is in custodia legis. It rejected the contrary view in Dukhan Ram v. Ram Nanda Singh, stating that the competence of a suit is not affected by whether a declaratory decree would bind the magistrate. The Court therefore allowed the appeal, set aside the High Court's dismissal on the preliminary ground, and remanded the matter to the High Court for decision on merits, with costs to the appellants here and below.
Headnote
A) Specific Relief - Declaratory Suit - Further Relief - Specific Relief Act, 1887, Section 42 proviso - A suit for declaration of title to property filed while the property stands attached under Section 145 of the Code of Criminal Procedure does not require a prayer for delivery of possession; the further relief contemplated by the proviso to Section 42 is relief against the defendant only, and in this case the defendant was not in possession and could not deliver possession - Held that the suit was competent and not barred by the proviso (Paras 656-658). B) Criminal Procedure - Section 145 Attachment - Custodia Legis - Code of Criminal Procedure, 1898, Section 145 - Property attached by a Magistrate under Section 145 is in custodia legis; when property is in custodia legis, it is not necessary for the plaintiff claiming declaratory title to seek possession; the magistrate's possession, whether on behalf of one party or another, does not affect the competence of the suit - Held that omission to claim possession did not bar the suit (Paras 657-658). C) Precedent - Contrary View Overruled - Dukhan Ram v. Ram Nanda Singh, A.I.R. 1961 Pat. 425 - The correctness of the contrary view that a declaratory decree would not bind the magistrate and hence possession relief is necessary was considered and rejected; the competence of the suit is unaffected by the prospective binding nature of the decree on the magistrate - Held that Dukhan Ram's case was not correctly decided (Paras 657-658).
Issue of Consideration
Whether in a suit for declaration of title to property filed when the property stands attached under Section 145 of the Code of Criminal Procedure, the plaintiff must also claim the consequential relief of possession to avoid the bar under Section 42 of the Specific Relief Act, 1887.
Final Decision
Appeal allowed; the suit was held competent and not barred by Section 42 Specific Relief Act; the matter remanded to the High Court for decision on merits; appellants awarded costs here and below.
Law Points
- In a suit for declaration of title to property filed when it stands attached under Section 145 of the Code of Criminal Procedure
- it is not necessary to ask for the further relief of delivery of possession
- the further relief contemplated by the proviso to Section 42 of the Specific Relief Act is relief against the defendant only
- property under attachment under Section 145 of the Code is in custodia legis
- not necessary to ask for possession when the defendant is not in possession and not in a position to deliver possession
- competence of suit unaffected by whether declaratory decree would bind the magistrate.
