(1.) This appeal by the plaintiff arises out of a suit under Order 21, Rule 63 of the Code of Civil Procedure for declaration that the lands described in Schedule 1 to the plaint "are not to be attached and sold" in execution of a decree obtained by defendant No. 1 against defendant No. 2, in Title Suit No. 114 of 1946 of the first Court of the Subordinate Judge at Gaya in Execution Case No. 98 of 1951 of that Court. This decree was in respect of maintenance, past and future, payable to defendant No. 1; and the decretal dues were charged on a zamindari property including certain bakasht lands of which the suit lands formed part. In execution of the decree against defendant No. 2, the suit lands were attached and the plaintiff made a claim under Order 21, Rule 58 of the Civil Procedure Code. The claim was based on the allegation that defendant No. 2 had settled the suit lands with defendant No. 3 on nakdi rent in 1948; and defendant No. 3 had, in his turn, sold the same as an occupancy raiyat to the plaintiff on the 8th October, 1952. The claim was disallowed by the executing Court on the 14th July, 1953, which is alleged to be the cause of action for the suit which was Instituted on the 5th October, 1953. But the execution case was dismissed on the 11th November, 1953 on full satisfaction, as the decretal dues were paid in cash and there was no occasion for putting the attached property to sale. A preliminary objection was, therefore, taken by defendant No. 1 to the effect that the suit was not maintainable, inasmuch as the attachment ceased to exist after the dismissal of the execution case. At an earlier stage defendant No. 1 had come up to this Court in civil revision and this Court had observed that this preliminary issue should be decided first; and the learned Subordinate Judge of Gaya decided the issue against the plaintiff. Hence, this appeal.
(2.) The only point, therefore, for consideration is whether the suit is maintainable in view of the dismissal of the execution case on the 11th November, 1953. Under Order 21, Rule 58 of the Code, the executing Court is required (a investigate into any claim to, or any objection to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to attachment. If the property is found to be in possession of the claimant on his own account, then under Rule 60, the claim will be allowed and the property will be released from attachment. But, under Rule 61, the claim is to be disallowed, if the Court is satisfied that the property was, at the time it was attached, in the possession of the judgment-debtor as his own property and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him. A speedy remedy against the order under Rules 60 and 61 is provided in Rule 63, which reads thus:
(3.) Sri K.K. Sinha relied on two decisions. In Radhabai Gopal Joshi v. Gopal Dhondo Joshi, AIR 1944 Bom 50, their Lordships of the Bombay High Court quoted with approval the observations of Rankin, J., in AIR 1924 Cal 744, in support of the principle stated in the earlier paragraph; and added: