GAJADHAR CHOUDHARY Vs. KHODAI RAHMAT KHAN

JUDGEMENT

(1.) This application is directed against an order of the learned Subordinate Judge, second court, Chapra, rejecting, in limine, a claim filed by the applicant before him. Opposite party No. 1 obtained a decree for recovery of Rs. 471/14/-against opposite party No. 2 on 29-2-1956. Thereafter he filed execution case No. 39 of 1956 seeking to attach and sell the goods in a shop located in a certain mohalla in the town of Chapra. In due course notice under Order 21, Rule 22 was served on the judgment-debtor and an order was made on 11-9-1956, for issue of attachment under Order 21, Rule 43. On 13-9-1956, the petitioner filed a claim case under Order 21, Rule 58 alleging that the shop in question had been rented by him and that the goods there belonged exclusively to him. He further asserted that the judgment-debtor was separate from him and that he (the judgment-debtor) had no interest in the property sought to be attached. The learned Subordinate Judge summarily rejected the application on the ground that no attachment had, in fact, been effected.

(2.) Mr. Ramanugrah Prasad appearing for the petitioner has urged that the learned court below was entirely wrong in holding that no claim case was maintainable unless attachment had, in fact, been effected. In support of his contention learned Counsel relies upon a decision in the case of Sarju Prasad Singh v. Mr. A. James, ILR 22 Pat. 709: (AIR 1944 Pat. 24) (A). In that case Manohar Lall and Reuben, JJ. (as he then was), after referring to the amendments made by this Court in Rules 58, 59 and 60 of Order 21 of the Code of Civil Procedure, observed that the modification in these rules were clear and consistent and there could be no doubt that the object was to bring within the scope of proceedings under Order 21, Rule 58, not merely property attached in execution of the decree but also all property which was the subject-matter of the execution proceedings. It is undisputed that the property which is sought to be attached and in respect of which the claim in this case has been instituted is the subject-matter of the execution proceedings. Mr. Anwar Ahmad appearing for the opposite party has not been able to prefer to any authority in support of the view taken by the court below,

(3.) In the result the application is allowed and the rule is made absolute. There will be no order as to costs.