Civil Revn Appln No.15 of 1966

30th January, 1970.

Petitioner Counsel: T.M. Chande, for Opponent No. 1.

Cases Cited:
H. C. Bank Ltd. v. Laxmi Narayan, (1957) AIR 1957 Cal 72 (V 44),61 Cal WN 118 [Para 9]
Hasim All Khan v. Hamidi Begum, (1942) AIR 1942 Cal 180 (V 29),74 Cal LJ 261 [Para 8]
Saraswatamma v. Maki Naidu, (1940) AIR 1940 Mad 881 (V 27),1940-2 Mad LJ 305 [Para 10]
Bachulal v. Ram Din, (1939) AIR 1939 All 117 (V 26),1938 All LJ 1118 [Para 7]
Mahomad v. Pandurang, (1929) AIR 1929 Nag 66 (V 16),115 Ind. Cas. 167 [Para 8]
Ramaswarni Goundan v. Karuppa Mudali, (1928) AIR 1928 Mad 163 (V 15),54 Mad LJ 321 [Para 7]
Najimunnessa Bibi v. Nacharaddin Sardar, (1924) AIR 1924 Cal 744 (V 11),27 Cal WN 888 [Para 8]
Sardharilal v. Ambika Parshad, (1888) ILR 15 CaL0 521,15 Ind. App. 123 (PC) [Para 6]
Hamid Bakhut v. Buktear Chand, (1887) ILR 14 Cal 617 [Para 8]

JUDGMENT

ORDER :-This is an application in revision by the decree-holder who had attached the house of opponent No. 2, who is the judgment-debtor, on 23-2-1965 in execution of his decree passed against him, on 19-12-1964. The judgment-debtor was in possession of the house when it was attached. The judgment-debtor was alleged to have sold the house to opponent No. 1, who is the objector, on 11-1-1965 as per the registered sale-deed. The opponent No. 1 objected to the attachment of the house under Order 21, Rule 58, Civil P. C., on 19-4-1965, on the ground that the property belongs to him. The applicant-decree-holder has contested the claim of the objector on the ground that the sale deed is fraudulent and bogus and that as a result of such transaction the objector could not acquire any legal title thereunder. He has also pleaded that the house which he attached was from the possession of the judgment-debtor.

2. The learned Civil Judge, who heard this application under Order 21, Rule 58, Civil P. C. considered the evidence and, according to him, the fact that the house was attached from the possession of the judgment-debtor was of no consequence at all and was irrelevant when it was sworn by the objector that he had a proprietary right over the attached house. According to him, the proprietary rights have to be attached and sold and, therefore, the possession was only an incidental factor. In this view, therefore, he raised the attachment of the house in the Darkhast proceedings filed by the applicant-decree-holder. This order, therefore is challenged here by the applicant. The point, therefore, that arises here for consideration is to see whether this order is illegal and improper.

3. The applicant had obtained the decree against the judgment-debtor on 19-12-1964. Thereafter the applicant started execution proceedings and attached the house belonging to the judgment-debtor on 23-2-1965. The house was attached from the possession of the Judgment-debtor. But the objector-opponent No. 1 thereafter filed an objection petition in the executing court on 19-4-1965 pleading that the house belonged to him and that the house which was attached was actually transferred to him under a sale transaction dated 11-1-1965 by the judgment-debtor. In other words, his case is that the judgment-debtor had sold the impugned house to the objector a month before it was attached. The objector has filed this objection under O. 21, R. 58, Civil P. C. Under Rule 58 where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit. Therefore, the executing Court can proceed to investigate the claim of the objector in the manner stated in R. 58. Tinder Rule 59 of the said Order, the claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached. It is, therefore, for the objector to show by evidence that he had some interest in or was in possession of the attached property when it was attached. The words "some interest" in Rule 59 mean such interest as would make the possession of the judgment-debtor as possession, not on his account, but on account of or in trust for the claimant. The words "or was possessed of" would mean, was possessed of for himself and not as trustee for the judgment-debtor.

4. After investigating in this summary way, under Rule 60 if the Court is satisfied that for the reason stated in the claim or objection such property was not when attached, in the possession of the judgment-debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the judgment-debtor at such time it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the Court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment. It is, therefore, plain that if during the course of the investigation the Court finds that the property was not in "possession" of the judgment-debtor for the reason stated in the objection, then the property could be released from attachment. If the Court, however, finds that the property was in "possession" of the judgment-debtor at the time of the attachment and if during investigation it is found that it was so in his possession not on his own account or as his own property but on account of or in trust for the objector, even then the Court has

to release the property from the attachment. Therefore, what appears to be more important is the fact of possession. Under Rule 61, if the Court is satisfied that the property was at the time when it was attached in the "possession" of the judgment-debtor as his own property and not on account of any other person in trust for him. then the Court has to disallow the objection. Rule 61 also therefore shows that in the summary inquiry possession appears to be the criterion, though incidentally the Court may have to look into the other aspects of possession. Under Rule 63 if 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 such suit, if any, the order shall be conclusive. Therefore, it is not that the order passed in the execution proceedings is final. If the party against whom an order is passed chooses to file a suit, that party is at liberty to establish the right which he claims to the property in dispute. Therefore, this provision clearly shows that the inquiry which has to be made by the Court under Order 21, Rule 58, is a summary inquiry, and if complicated questions of title or other facts are involved, then the party has to establish its right by filing a suit.

5. In the instant case before me, the applicant has attached the house claiming that the house belonged to the judgment-debtor on 23-2-1965. On the other hand, the objector claims that the property was transferred to him by the judgment-debtor a month before the attachment. The reply of the decree-holder to this objection is that the sale deed on which the objector relies is fraudulent and bogus and that, therefore, the objector could not have any valid title under such bogus and fraudulent transfer. Admittedly, although the sale deed shows that possession was also given by the judgment-debtor to the objector on 11-1-1965, the date of the sale, still we have evidence to show that the house was attached from the possession of the judgment-debtor on 23-2-1965 which is a date after the sale transaction. Therefore, the house was not in possession of the objector on the date when it was attached but was in possession of the judgment-debtor. The point, therefore, that arises for consideration now is to see whether the judgment-debtor was in possession on his own account or was in possession in trust for the objector. The applicant has also contested the claim of the objector by saying that the sale transaction is fraudulent and bogus. We will, therefore, have to consider the application under Order 21, Rule 58, Civil P. C. in the context of the circumstances.

6. The Judicial Committee of the Privy Council in Sardhari Lal v. Ambikar Parshad, (1888) ILR 15 Cal 521 (PC) was considering the old Section 280 of the Code of Civil Procedure which is almost equivalent to Order 21, Rule 58. While considering the scope of investigation under this rule, the Judicial Committee has observed that the Code does not prescribe the extent to which the investigation should go and that though in some cases it may be very proper that there should be as full an investigation as if a suit were instituted for the very purpose of trying the question, in other cases, it may also be the most prudent and proper course to deliver an opinion on such facts as are before the Subordinate Judge at the time, leaving the aggrieved party to bring the suit which the law allows to him. Their Lordships did not, however, desire to pronounce any opinion as to the extent of the investigation which was required under the Code.

7. The Allahabad High Court has taken a view in Bachu Lal v. Ram Din, AIR 1939 All 117, while considering Order 21, Rule 58, that the Court dealing with objections under Rule 58 has to concentrate only on the question of possession and is not concerned with nor is it competent to decide the question of title to the property. Similarly, the Madras High Court in Ramaswami Goundan v. Karuppa Mudali, AIR 1928 Mad 163 took the same view and went to the extent of even stating that any investigation of questions of title to the properties is entirely beyond the scope of the investigation directed by the Code when a claim to attached properties is preferred.

8. In Mahomad v. Pandurang. AIR 1929 Nag 66, the Nagpur High Court was considering Order 21, Rule 58, Civil P. C. and it was observed there that what the Court has to find out in objection cases under Rule 58 is who was in possession. It should not go into questions of title as finding as to title in a summary enquiry does not bind the Court in the regular suit brought by the aggrieved party. The cases of Najimunnessa Bibi v. Nacharaddin Sardar, AIR 1924 Cal 744 and Hamid Bakhut v. Buktear Chand, (1887) ILR 14 Cal 617 were relied upon. Possession also was thought to be the principal criterion the Calcutta High Court in Hasim Ali Khan v. Hamidi Begum. AIR 1942 Cal 180. It was observed by a Division Bench of that Court that the provisions of Order 21, Rule 58, and the following rules of that Order upto Rule 63 is a

reasonable adjustment of two principles. The first is that a judgment-debtor (sic - decree-holder?) should have the fruits of his decree as quickly as possible; and the other principle is that a third party should not be allowed to be harassed by the decree-holder's attempt to take in execution his property. The adjustment is made by allowing the third party to intervene in the execution proceedings as a claimant but the first principle which keeps in view the interest of the decree-holder requires that the claim proceeding should not be prolonged, for that would delay execution. Hence the investigation of the claim by the executing Court must be of a summary nature ordinarily to be decided on the basis of possession. The summary nature of the investigation of the claim by the executing Court requires in the interest of justice that the party against whom an adverse order is made by the executing Court should be given the opportunity within a short period of time to reagitate in a more detailed form the question of his claim in a regular suit. Evidently, therefore, the inquiry under Order 21, Rule 58 should necessarily be of a summary nature and the language of the rules shows that the objection should be decided principally on the basis of possession.

9. In H. C. Bank Ltd. v. Laxmi Narayan, AIR 1957 Cal 72, the Calcutta High Court was of the same view. That High Court observed that the question of title is required to be gone into only so far as it may be necessary to determine whether the person in possession holds such possession as agent or as trustee for another and that if it be found that the judgment-debtor is in possession of the attached property the further issue whether his apparent possession is his real possession will not be gone into. Reliance was placed on other Calcutta High Court cases by their Lordships in this case.

10. The Madras High Court also In Saraswatamma v. Maki Naidu, AIR 1940 Mad 881 was considering Order 21, Rule 58 as well as Section 47 of the Civil P. C. While considering the difference, it was observed that for the purposes of deciding a claim under Order 21, Rule 58, the Court is bound to find who was in possession at the time of the attachment, that it is not bound to find who had the title to the land for determining title that in so far as the purpose of deciding a claim under Section 47 was concerned, it is necessary however to go into all the contentions of the parties including the contention as to title; that the scope, therefore, of the inquiry cannot be restricted merely to the question of possession at the time of the attachment and that the difference between the two inquiries is therefore not a difference in procedure so much as a difference in the scope of the inquiry. With respect, I agree with this view.

11. Therefore, the learned Civil Judge's observation while considering the objection that the fact of possession is irrelevant is erroneous. It appears to me, therefore, that the learned Civil Judge has considered the objection in a misconceived way. His view that only the proprietary rights are to be considered in an application under Order 21. Rule 58, and not possession, therefore, is plainly erroneous. If therefore, he has decided this application on the basis of this erroneous approach, his order should be treated as improper. The case of the objector is that he purchased the house a month before it was attached by the applicant. The applicant, on the other hand contends and says that the sale deed is a fraudulent and bogus deed and therefore the objector could not acquire any title under this fraudulent and bogus sale transaction. The property was, admittedly, attached from the possession of the judgment-debtor although it is recited in the sale transaction between the judgment-debtor and the objector that the possession of the attached house was given on 11-1-1965 which is a date prior to the date of the attachment. In the circumstances in which the sale transaction was alleged to have taken place, it would be difficult for the executing Court to go into the question of title in this summary investigation. The possession of the judgment-debtor therefore should be treated in the circumstances of our case to be a possession on the judgment-debtor's own account. There is nothing on record to show that he was holding possession either on account of the said objector or in trust for the objector. In this view of the matter, therefore, I will have to allow this application and set aside the order passed by the trial Court.

12. I, therefore, allow this application with costs and set aside the order of the trial Court.

Revision Allowed