ABDUL WASEY Vs. STATE OF U P

JUDGEMENT

(1.) THIS second appeal arises out of a suit which the plaintiff filed claiming a declaration that the amount of Rs. 409.44 deposited by the defendants Nos. 2 and 3 in tehsil Amroha as land revenue payable by them was not really land revenue so payable by them and hence the said sum was liable to be attached in the execution of the decrees in suits Nos. 39 of 1954 and 27 of 1958 passed by the court of Munsif, Amroha. The case of the plaintiff-appellant was that he was the bhumidhar of the plots detailed at the foot of the plaint and had been paying land revenue in respect of the same regularly. The defendants Nos. 2 and 3 wrongly deposited the amount in question i.e. a sum of Rs. 409.44 in the tehsil as land revenue in respect of the said plots. The said defendants were not the tenure-holders of the said plots and had no obligation to pay any land revenue in respect of the said land which had been in the possession of the plaintiff and of which he was the tenure-holder. The plaintiff further alleged that as the decree-holder in the aforesaid two suits he sought by his execution application, to attach the said amount deposited in the tehsil by the defendants Nos. 2 and 3 who were the judgment-debtors in the said decrees but the execution court held that the said amount was not attachable as it stood deposited in the tehsil as land revenue, and rejected the execution application. The plaintiff further alleged that he filed two execution appeals against the rejection of his execution application and the refusal of the execution court to attach the said amount in the execution of the said two decrees but the appellate court directed the plaintiff to file regular declaratory suits seeking a declaration that the amount in question was liable to be attached in the execution of the said decrees. Hence he filed the instant suit. The defendant No. 1 was the State of Uttar Pradesh and the defendants Nos. 2 and 3 were the judgment-debtors in the decrees which were passed in his said suits, namely, Nos. 39 of 1954 and 27 of 1958. Defendant No. 3, Heera Singh, died, during the pendency of the litigation and his heirs were brought on record. The defendants contested the suit. The defendant No. 1 claimed that the money was realised from the defendants Nos. 2 and 3 as land revenue and, therefore it was not attachable by the execution court in the execution of the decrees which were passed against the defendants Nos. 2 and 3. The defendants Nos. 2 and 3 contended that they were in possession of the plots in suit and they deposited the said amount as land revenue due in respect of the said land. The amount in question having been deposited as land revenue was not attachable. A plea was also taken that the suit was not maintainable in view of the bar of S. 47 C. P. C.

(2.) THE trial court framed the necessary issues, tried the same and dismissed the suit, inter alia, on the ground that it was not maintainable due to the bar contained in S. 47 C. P. C. THE lower appellate court dismissed the appeal filed by the plaintiff. Now, the plaintiff has come up in the instant second appeal and I have heard the learned counsel for the appellant. In my view, this appeal lacks merit. It is obvious that the suit was not maintainable in view of S. 47 (1) C. P. C. which lays down that all questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. When a decree-holder seeks to execute his decree against the judgment-debtor by attachment and sale of the judgment-debtor' s property he moves an application for execution and seeks the attachment of any property which he alleges to belong to the judgment- debtor. It cannot be disputed that before proceeding to attach the property he need not file a suit seeking a declaration that a particular property is attachable in the execution of his decree. Such a suit will be clearly barred under S. 47 C. P. C. In the execution proceedings a dispute some times arises whether the property sought to be attached is liable to be attached or not. THE judgment-debtor sometimes despite the decree-holder' s claim that a particular property is attachable files objection under S. 47 C. P. C. and such objections are decided by the execution court and the order passed by the execution court used to have the force of a decree and an appeal lay against the same as an appeal from the decree. I am for the time being forgetting the position as it has changed after the amendment of the C. P. C. in 1976 which has amended the definition of the decree in S. 2 (2) so as to exclude the orders passed under S. 47. It is not disputed that so far as the present appeal is concerned, it is the old provision which continue to govern its adjudication. Some times objections are filed under O. 21 R. 58 C. P. C and the claimant or the objector claims and if he succeeds in proving that the property sought to be attached is not liable to be attached and the objector or the claimant tries to show that the property was in his possession and it was not 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 under O. 21 R. 60 C. P. C. When the claim or objection is rejected under O. 21 Rule 61 C. P. C. then the claimant or the objector is entitled to file a suit under O. 21 R. 63 C. P. C. to establish the right which he claims to the property in dispute.

(3.) THIS appeal accordingly fails and is dismissed but there will be no order as to costs. Appeal dismissed.