MANGILAL AGARWALLA Vs. MT. SOMELI BRAHMANI AND ORS.

JUDGEMENT

(1.) THIS application under Section 115, Civil P. C., is directed against an order of Sri B. C. Datta, Subordinate Judge, Upper Assam Districts, dated 22 -12 -1053, in which he has allowed a claim petition filed by the Opposite Party under Order 21, Rule 58 read with Order 38, Rule 8, Civil P. C.

(2.) THE admitted facts are that the petitioner instituted a Money Suit against Opposite Parties, Hariram Brahman and Sreeram Brahman, for recovery of a sum of money said to have been lent to them on a promissory note on 25 -12 -1947. The petitioner applied for attachment before judgment, which was allowed on 24 -1 -1950. The suit was eventually decreed on compromise between the parties on 14 -8 -1952. But as the decretal amount was not paid, the petitioner was compelled to proceed to execute the decree in Execution Case No. 37 of 1952. It was then that in December, 1952 the Opposite Party No. 1, Musst. Someli Brahmani, who is the wife of Opposite Party No. 2, Hariram Brahman, filed the claim application. She alleged that the attached properties had been given to her under a registered deed of gift, dated 6 -7 -1949, executed by Hariram Brahman, Opposite Party No. 2. The learned Subordinate Judge has disposed of the application by a somewhat speculative order, without seeking to decide the matter according to law, as contemplated by Rules 59 and 60 of Order 21, Civil P. C.

(3.) IN the present case, the learned Subordinate Judge appears to suggest in his order that the deed of gift, under which the Opposite Party No. 1 claims may be a benami transaction, but he thinks that the question cannot be gone into in this proceeding and, for this reason the property has to be released. In our opinion, this reason is quite inadequate to dispose of the matter. It is true that in a proceeding of this nature, the Court cannot be expected to go into the question of title. Rule 60 of Order 21 points out that where, upon investigation, the Court is satisfied that the property attached is in possession of the judgment -debtor or of some person in trust for him or that, being in the possession of the judgment -debtor, it was so in his possession, not on his own account, but on account of or in trust for the claimant, then the Court shall make appropriate orders rejecting the claim petition or releasing the property, as the circumstances of the case required.