The dismissal of a claim petition for want of prosecution amounts to an adverse order within the meaning of O.21, R.63, C.P.C. and the claimant is bound to file a suit within one year from the date of the order to reopen the matter and assert the same claim.

JUDGMENT : - This is an appeal by one Thaherunnissa Begum, wife of Syed Jaffar Mohideen Sahib, the judgment-debtor, against the order of the Principal Subordinate Judge, Salem, dated 14-7-1950, in R.E.P. No.244 of 1949, in O.S. No.34 of 1944 overruling her objection to the sale of certain properties, claimed by her to have been granted on Saswatha patta to her by the judgment-debtor, in execution of the decree in O.S. No.34 of 1944 by the decree-holder, and directing the sale to proceed.

2. I have perused the entire records, and heard the learned counsel on both sides, and see no substance in this C.M.A.

3. The appellant herein had claimed the same properties as hers by virtue of a patta given to her by her husband, the judgment-debtor, and had urged that her husband, the judgment-debtor, had no longer any rights in them except to the rent reserved. But she had not pressed that claim petition with the consequence that it was dismissed. She did not file also any suit to set aside the dismissal of the claim petition within the one year allowed by law. The lower Court, relying on the decision in - Kandasami Mudaliar v. Sivagurunatha Mudaliar, AIR 1935 Mad 328 (A), was inclined to think that the claim order could not become conclusive against the appellant, because the claim petition was dismissed as not pressed and not on merits. But, a Full Bench of this Court has, later on, in - Cannanore Bank Ltd. v. P.A. Madhavi, AIR 1942 Mad 41 (FB) (B), held expressly that if a claim petition under O.21 R.58 was not pressed and was dismissed without obtaining the permission of the court to withdraw it without prejudice to the rights of the petitioner, the dismissal would amount to an adverse order within the meaning of O.21, R.63, C.P.C. and that the petitioner, if she wished to reopen the matter and assert the same claim, was bound to file a suit within one year from the date of the order.

It has also been held by a Bench of this court in - "Yarakkayya v. Venkata Krishnamaraju, AIR 1918 Mad 693(1) (C), that when the order dismissing a claim petition was not set aside by filing a suit within one year, as contemplated under O.21, R.63, it will become conclusive and the same claim could not be agitated again. It is obvious therefore that the decision AIR 1935 Mad 328 (A), must be deemed to have been overruled by the Full Bench decision quoted above. So, res judicata operated against the appellant, and the appellant had absolutely no right to come and press this stale claim of hers, which had been dismissed, by way of counter in this E.P. On this ground alone, this C. M. A. must be dismissed.

4. The lower court found also that her claim was on merits frivolous and unsustainable, and that her husband had given the patta to her between the date of the issue of the suit notice to him by the plaintiff and the date of its receipt by him, having come to know of it. That point need not be gone into, in view of my finding that the appellant was barred by res judicata and had absolutely no right to re-agitate that claim of hers which had not been pressed by her and was dismissed, and the dismissal was not sought to be set aside in a suit. But, I may say that there too I agree with the lower court that this woman was given the patta to defeat this decree-holder, and that she was setting up an unsustainable claim that he could not execute the decree by sale of these properties. There is no need to go into the validity of the reasons, as she could not, under the law, set up this claim as against him, as it was barred by res judicata.

5. It was then urged by Mr. Gopalaswami Aiyangar that, even so, the decree-holder should have filed a suit, under S.53, T.P. Act on behalf of all the creditors of his judgment-debtor, in order to avoid the transfer by him (the appellants husband) in favour of this appellant, and relied on some rulings which need not be discussed as they apply only to cases where the decree-holder has to file a suit. This contention must f