DUDHARAM JANARDAN CHIMURKAR Vs. BALAJI RAGHOBAJI BAND

JUDGEMENT

(1.) 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 Order 21, Rule 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 Rule 58. Under 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.