RAMDEO KABRA Vs. FAKIRAN DEVI

JUDGEMENT

(1.) On behalf of the petitioner it was contended by learned Counsel that the petitioner had purchased a property in a certificate sale on the 11th June, 1956, before the attachment was made by the executing court on the 4th July, 1956, and the said certificate sale was confirmed on the 11th August, 1956. The property was, however, again purchased by the decree-holder on the 25th November 1956. The case of the petitioner is that the executing court ought to have allowed his application under Order 21, Rule 58. Code of Civil Procedure, instead of dismissing it.

(2.) In support of this argument learned Counsel referred to the Patna amendment of Rules 58 and 59 which are to the following effect:

(3.) It is clear from the language of Rule 60 that the petitioner must show in order to succeed in this application not only that he had on the date of attachment some interest in the property in question but also that the property was in his possession or of some other person in trust for him or on his account. In the present case the petitioner has been unable to satisfy on this point the executing court which has recorded a finding that the petitioner was not in possession of the property on the date of the attachment nor was someone else in possession of the property on behalf of the petitioner. It was, however, contended by learned Counsel on behalf of the petitioner that even if the judgment-debtor was in possession of the property it must be deemed in the eye of law to be in trust for the petitioner who had purchased the property in auction sale on the 11th June, 1956, before the date of attachment. No authority was referred to by learned Counsel in support of this proposition which is also not correct in principle. It is not possible in our opinion to treat the judgment-debtor who was in possession of the property on the 4th July, 1956, as a trustee for the petitioner.In our opinion there is no merit in this application. It is accordingly dismissed with costs. Hearing fee Rs. 100.00