NARSIMGEER Vs. SATYANARAYAN BAGHADE

JUDGEMENT

(1.) THE learned advocate for the Petitioner is present and the Respondents' are absent. In this revision petition the question for decision is whether the Petitioner has any interest in the property attached for the purposes of O 21, R. 59, Code of Civil Procedure and further if the judgment debtor is in possession of the attached house, is his possession to be considered to be on his own behalf or some other person for the purposes of the same order. The brief facts of the case arc that the Petitioner obtained a decree against one Dayalpuri and attached the house in question in execution proceedings stating that it belongs to the judgment -debtor. The Respondent Satyanarayan Baghade obtained a money decree against Respondent 2, Narendrapuri and attached the same house in execution of his decree stating that it belonged to Narendrapuri. The house has now been put up for sale. The Petitioner submitted his petition in the lower Court under Order 21, R. 58 stating that in view of the decree of the High Court declaring that the house belonged to Dayalpuri he has an interest in proving that the house belongs to Dayalpuri and therefore was not liable to attachment in execution of a decree against Narendrapuri. The lower Court rejected the Petitioner's claim without making any enquiry into his allegation on the preliminary ground that the petitioner neither in possession of the attached house nor does he claim to be in possession of the attached house. We are unable to agree with the opinion of the lower Court.

(2.) FOR the purposes of Rr. 59 and 60, the fact which the Petitioner has to prove is either that he has an interest in the attached property or is in possession of the same. The lower Court has obviously failed to observe that even if the Petitioner has an interest in the attached property he has a right to lead evidence. Under Rr. 59 and 60, Code of Civil Procedure it is clear that if the Petitioner is able to prove his claim that he has a decree against Dayalpuri and that the house belongs to Dayalpuri, he can always succeed. Thus both for the purposes of Rr. 59 and 60 the Petitioner has, in our opinion, a 'prima facie' case so prove. We, therefore, set aside the order of the lower Court and direct that proper enquiry should be made into the claim of the Petitioner. We allow costs to the revision Petitioner. Advocate's fee Rs. 30.