KUSUM KUMARI Vs. FIRM HARNATH RAI BIRIRAJ

JUDGEMENT

(1.) This is an appeal from an order rejecting the judgment, debtor's objection under Section 47, Civil P.C., on the ground that it was filed too late. The objection taken was that the property which was sought to be sold was a Government ghatwali tenure and was not saleable. The objection was filed on the date of sale and the learned subordinate Judge summarily dismissed the objection. If the tenure be really not saleable, that question must be determined before the sale can take place. The mere fact that the objection was filed late is no ground for rejecting it, although the judgment-debtor may be made liable to pay costs. The objection goes to the root of the jurisdiction of the Court to hold the sale. In my view, therefore, the subordinate Judge should not have rejected the objection summarily.

(2.) Mr. G.C. Mukherji on behalf of the respondent contends that the objection was really a claim under Order 21, Rule 58 and therefore the appeal does not lie. He argues that the contention that the property is a Ghatwali tenure is tantamount to an assertion that the judgment-debtor is holding the property as a public servant, in other words, he is holding it as a trustee. This argument, to my mind, has no force at all. The judgment, debtor holds the property in his own right and he is entitled to enjoy the usufruct thereof, and the objection is taken by the judgment- debtor himself. Under Section 60, Civil P.C, no property is liable to be attached and sold over which the judgment-debtor has no power of disposal.

(3.) Such an objection can certainly be raised under Section 47, Civil P.C. I would, therefore, allow the appeal, set aside the order of the Court below and remand the case for disposal according to law. The judgment-debtor, however, must pay costs to the decree-holder of both the Courts, Rs. 50 for each Court. I should observe that the execution case must be kept pending. Meredith J. I agree.