MOHINDER SINGH Vs. NANAK SINGH

JUDGEMENT

(1.) NANAK Singh, decree-holder respondent, obtained a money decree against Jagdish Chander judgment-debtor respondent. An execution was taken out by the degree-holder and a plot of land got attached on 7th October, 1969. Before the attachment took effect, Jagish Chander had already executed an agreement to sell the same plot to the petitioners, Mohinder Singh and Balwant Singh, for a sum of Rs. 22,500/- and delivered possession of the same to them. In execution proceedings, objections were filed by the petitioners, objections were filed by the petitioners under Order 21, Rule 58, Civil Procedure Code, it being pleaded by them that the property under attachment, though originally belonging to the judgment-debtor, was possessed by them in their own right and, therefore, not liable to attachment and sale. The only issue rammed by the executing Court was to the following effect: "whether the objectors are in possession of the property under attachment in their own right as claimed ?" It was conceded on behalf of the objectors that the agreement executed in their favour did not create any interst in the property agreed to be sold in terms of Section 54 of the Transfer of Property Act, 1882, but the contention was that the objectors had taken possession of the property and the only question to be determined, as envisaged under Order 21, Rule 59, was whether they were possessed of it in their own right or not. Evidence was adduced by the objectors to prove execution of the agreement and also to show that they had paid a sum of Rs. 19,500/- to Jagdish Chander, judgment-debtor, out of the total consideration of Rs. 22,500/- and that only a balance of Rs. 3,000/- remained to be paid at the time of registration of the sale deed. Receipt Exhibit 02 evidencing payment of Rs. 18,500/- was duly got proved and it was not disputed that Rs. 1,000/- had been paid earlier. Out of Rs. 18,000/- a sum of Rs. 13,000/- as disclosed by the evidence, was meant to be paid to the Industries Department towards the loan due from the judgment-debtor.

(2.) THE executing Court on an appraisal of the evidence came to the conclusion that the objectors, now petitioners, were in possession of the plot in dispute prior to the attachment as prospective vendees. In this view of the matter, the property was directed to be released from attachment but a condition was imposed on the objectors that release would be operative only on payment of the unpaid sale price of Rs. 3,000/- to the decree-holder respondent. It is against this director that a revision petition has been filed by the objectors.

(3.) A preliminary objection has been raised by Mr. R. L. Aggarwal, learned counsel for the respondent, decree-holder, that no revision is competent. I am afraid the objection is without substance. The only provision of law that can be pleaded as a bar to the maintainability of the revision petition is Order 21, Rule 63, Code of Civil Procedure, which provides that a party against whom an order is made on objections preferred under Order 21, Rule 58 may institute a suit to establish the right which he claims to the property in dispute. But subject to the result of such a suit. If any, the order is to be conclusive. It is only the right that the decree-holder or the objector has to the property attached that can form the subject-matter of the suit. An objector in proceedings relating to the investigation of claims and objections under Order 21 can only get an adjudication that the property itself is not liable to attachment. In other words, it is the liability of non-liability of the property to attachment that is to be determined and not whether any conditions for the release of the property under attachment are to be imposed or not. Rule 59 lays down the scope of the enquiry. All that a claimant or objector is required to show is that on the date of attachment he had some interest in or was possessed of the property attached. As soon as the executing court upon investigation is satisfied that the property when attached was in possession of the objector on his own account, it has got to release the same from attachment and no questions of legal right and title are to be determined. If the executing Court passes an order which is not contemplated by Rules 58, 59, 60 and 61 of Order 21, and no appeal lies against that order, a revision will be competent subject to the conditions of Section 115 being satisfied. The word 'conclusive' as appearing in Order 21, Rule 63 has, therefore, to be read in this context. When an objector challenges the order of the type, as made in the instant case, where inspite of the finding that he is in possession in his own right the property is not released unconditionally, there is no right of appeal available to the objector. Section 115 prohibits the exercise of revisional jurisdiction by the High Court only if remedy by way of an appeal can be pursued, and the existence of an alternative remedy by suit under Order 21, Rule 63, does not create any such bar. In my opinion, revision in such a case can be entertained if the pre-requisites for the applicability of Section 115 of the Code of Civil Procedure are otherwise found to exist.