Case Note & Summary
The appeal arose from a suit filed under Order 21 Rule 63 of the Code of Civil Procedure, 1908, after an adverse order in attachment proceedings. Phool Chand, predecessor-in-title of the appellant Sawai Singhai Nirmal Chand, had obtained a decree against the Union of India for Rs 24,234-14-0 with costs and interest. Pending appeal by the Union of India, the decretal amount was deposited, and Phool Chand withdrew Rs 28,032-12-0 after furnishing security. The High Court partly allowed the appeal, reducing the decretal amount, so Phool Chand had withdrawn an excess of Rs 15,340-14-8. The Union of India applied for restitution, and in execution sought attachment and sale of certain immovable properties. Meanwhile, Phool Chand had sold those properties to the appellant by a registered sale deed dated 9 January 1953. The appellant filed an objection under Order 21 Rule 58 CPC, which was dismissed on 16 April 1957. He then gave notice under Section 80 CPC on 12 April 1958 and filed a suit under Order 21 Rule 63 on 23 June 1958 seeking a declaration that the properties could not be attached and sold because title vested in him, and an injunction restraining attachment and sale. The respondent raised limitation, contending that Section 80 did not apply to suits under Order 21 Rule 63, so the notice period could not be excluded. If Section 80 applied, the suit was within time; otherwise, it was barred under Article 11 of the Limitation Act, 1908. The trial court and the High Court held that Section 80 did not apply and dismissed the suit as time-barred. On appeal, the Supreme Court considered the plain language of Section 80, which requires two months' notice before instituting any suit against the Government. The Court held that the words of Section 80 are wide, unambiguous, express, explicit and mandatory. A suit under Order 21 Rule 63 is a suit against the Government, commenced by presentation of a plaint under Section 26 CPC, and not a continuation of the attachment proceedings or an appeal. The order under Rule 58 is the cause of action. The Court distinguished Phul Kumari v. Ghanshyam Misra and Amar Nath Dogra v. Union of India, and applied Bhagchand Dagadusa v. Secretary of State for India in Council. It concluded that Section 80 applies to suits under Order 21 Rule 63, and the notice period must be excluded for limitation. Accordingly, the appeal was allowed, the lower courts' decisions were set aside, and the suit was held to be within time.
Headnote
A) Civil Procedure - Notice to Government Before Suit - Section 80 CPC, 1908 applies to all suits against Government including suits under Order 21 Rule 63 - The words of Section 80 are wide, unambiguous, express, explicit and mandatory; no suit against the Government can be instituted without two months' notice - A suit filed under Order 21 Rule 63 to set aside an adverse order under Order 21 Rule 58 is a suit against the Government; hence notice under Section 80 is mandatory and the period of notice must be excluded for limitation - Held that lower courts erred in holding Section 80 inapplicable. B) Civil Procedure - Nature of Order 21 Rule 63 Suit - A suit under Order 21 Rule 63 is not a continuation of objection proceedings or an appeal but an independent suit - It commences with presentation of plaint under Section 26 CPC and is governed by Article 11 Limitation Act, 1908 - The order under Rule 58 is the cause of action; scope of suit is wider - Held that Privy Council decision in Phul Kumari v. Ghanshyam Misra does not support treating it as mere form of appeal for Section 80 purposes. C) Interpretation of Statutes - Literal Interpretation - Words of Section 80 'express, explicit and mandatory' cannot be read down by adding exceptions - Held court cannot add words of exception to Section 80.
Issue of Consideration
Whether a suit filed in pursuance of Order 21 Rule 63 of the Code of Civil Procedure attracts the provisions of Section 80 of the Code.
Final Decision
Appeal allowed. Held that Section 80 CPC applies to suits under Order 21 Rule 63; notice given by appellant valid; suit not barred by time; High Court and trial court decisions set aside.
Law Points
- Section 80 of Code of Civil Procedure
- 1908 applies to all suits against Government
- including suits under Order 21 Rule 63
- a suit under Order 21 Rule 63 is an independent suit
- not a continuation of objection proceedings or an appeal
- notice period under Section 80 must be excluded for limitation
- words of Section 80 are express
- explicit and mandatory
- court cannot add exceptions to Section 80
