The main legal point established in the judgment is that an order can be considered adverse under Rule 63 of the Code of Civil Procedure if it falls within Rule 58 and is against the claimant, even if it does not involve an adjudication on the merits after investigation.

Alfred Henry Lionel Leach, C.J.

1. In order to give an answer to the question referred it is necessary to decide what is meant by an adverse order under Order 21, Rule 63 of the Code of Civil Procedure. That rule states that 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 a suit the order shall be conclusive. The order referred to in the rule is an order passed on an application which falls within the purview of Rule 58. That rule provides that where a claim is preferred to, or an objection is made to the attachment of property attached in execution of a decree on the ground that it is not liable to attachment, the Court shall proceed to investigate the claim or objection, provided that it may refuse to investigate when it considers that the claim or objection was designedly or unnecessarily delayed.

2. In Venkataratnam v. Ranganayakamma (1918)35MLJ335 , Wallis, C.J., and Oldfield and Seshagiri Aiyar JJ., held that an order refusing to investigate a claim to attached property on the ground that there was delay in the filing of it was an order passed against: the claimant within the meaning of Rule 63 and by reason of Article 11 of the Limitation Act the order became final unless a suit was filed within twelve months to set it aside. In that case an application for the removal of an attachment was made, but it was filed at a late stage and the District Munsif refused, to enter into an investigation. His order was couched in these words:

As this petition was filed late, this claim is ordered to be notified to the intending bidders.

This did not satisfy the petitioner and a fresh application was filed for the removal of the attachment. The order on this occasion was:

The allegations of the zamindarini will be notified to the bidders with the remark that the zamindarini did not take steps for her claim being enquired into during the last ten months.

The Full Bench held that this order amounted to a rejection of the claim on the ground that it had been filed too late and therefore was an adverse order within Rule 63, though there was no investigation and consequently no decision on the merits.

3. It is admitted that the judgments in that case have received the approval of all the High Courts in India, but there are numerous decisions of this Court where a distinction has been drawn, in some cases, wrongly. The test is whether the order is "against" the claimant or the decree-holder, but that does not mean that the order must involve an adjudication on the merits after investigation. Even an order of dismissal for default will fall within the rule; so long as it remains in force it is obviously adverse to the claimant. But if the person objecting to the attachment does not ask for his claim to be investigated and the order on the petition is merely that it be recorded, it cannot be said that this is an order "against" him. In such a case the application will not fall within Rule 58. See P.R. Ayya Pattar v. Attupurath Mankkal Karnavan 1919 M.W.N. 805. Again the petition may contain a prayer not contemplated by Rule 58, or it may have been presented after the Court has sold the attached property and therefore the Court has no longer jurisdiction to entertain it. The dismissal of such a petition can scarcely be regarded as an adverse order. See Abdul Kadir Sahib v. Somasundaram Chettiar AIR1923Mad76 . The position is not different, if the claim is for an inquiry which is not contemplated by the rule, or the Court while dismissing a petition expressly states that the rights of the petitioner are not prejudiced by the order. See Karri Seetaramayya v. Pappu Subrahmanyam (1934) 68 M.L.J. 518 : I.L.R. Mad. 936. It is not an adverse order if the petition is dismissed because the power to investigate is in another Court. See Lakshmi Ammal v. Kadiresan Chettiar AIR1921Mad488 . But the positi