JAGANNATH Vs. GANPATRAO

JUDGEMENT

(1.) GRILLE , J.C. 1. This is an application in revision against the order of the Subordinate Judge, Saoner, in execution proceedings dismissing the applicants' objection to the attachment of a village share and a field. The attachment was made by the decree-holder, G.V. Deshmukh from the possession of the judgment-debtor before judgment and the property consisted of a village share of mouza Sillori and four khudkasht fields. The objectors' contention was that they had purchased the village share and one of the fields by a registered sale-deed one month before attachment. They claimed to have been in possession thereof at the time the attachment was made and prayed for the release of the property. The decree-holder denied the sale and pleaded that it was a bogus and fraudulent transaction and also denied that the objectors were in possession at the time of attachment. The Court proceeded to try the following issues: 1 (a) Did the defendant in the connected suit sell the village share and the field to the applicants ? (b) What was the consideration of the sale-deed ? (c) Is the applicant in possession of the village share and the field in question from the date of the sale in his own right ?

(2.) IS the sale bogus or fraudulent as stated by the non-applicant ? 2. On these issues the learned Subordinate Judge found that the village share was sold to the applicants, that consideration amounted to more than Rupees 6,000, but that the applicants were not in possession of the village share or the field at the date of attachment. He also found that the sale was a genuine transaction and that the applicants were entitled to the village share and the field "as a matter of right," but since they were not in possession at the time of attachment and the judgment-debtor was, the Court declined to release the property and dismissed the applicants' claim. The objectors now apply in revision on the ground that, on the findings arrived at in the Court below, they were entitled to have the property released, inasmuch as it has been found that they had an interest in the property under attachment. The finding that they were not in possession at the time of attachment is not disputed.

(3.) RULE 59 lays down what the applicants must prove by evidence, that is possession or interest. Rule 60 lays down the conditions for the release of property attached, and if the judgment-debtor is in possession, it is only to be released if the possession was not on his own account but in trust for some one else. The conditions in Rule 60 are summarized in Rule 61. It follows that the interest of the objector, to which reference is made in Rule 59, must coincide with the limited possession of the judgment-debtor specified in Rules 60 and 61 and; that the interest can be no more than the trust of the person on whose account the judgment-debtor holds the property. If interest were to be otherwise defined, the anomalous position would arise that under Rule 59 the claimant would be directed to adduce evidence on certain matters and when this evidence is produced, the Court by Rule 61 would be entitled to disallow the claim and decide the question on matters considerably more limited in scope than those in respect of which evidence was tendered.