SABELLA APPANNA Vs. MALLIDI APPANNA

JUDGEMENT

(1.) Plaintiff, a judgment-debtor, sued for a declaration of his right to certain lands attached by the 2nd defendant and for the setting aside of the summary order passed on the latter s claim petition.

(2.) It is contended, firstly, that only a decree-holder can sue for relief of this nature. It has not, however, been explained how a judgment-debtor is not as directly interested in making a particular portion of his property available for the payment of his debt as the decree-holder is in securing payment from that portion. And, as regards authority, Guruva v. Subbarayudu 13 M. 366 and Muthusamy Mudaly v. Ayyhlu Baihadu 13 M.L.J. 367 are against the appellant s contention. The latter case refers to Sardhari Lal v. Ambika Pershad 15 C. 521 : 15 I.A. 123 (P.C) : 5 Sar. P.C.J. 172 : 12 Ind. Jur. 210 as reconcilable with the judgment-debtor s right to sue. Authority in this Presidency being in favour of that right, it is unnecessary to deal at length with Kedarnath Chatterji v. Rakihal Das Chatterji 15 C. 674 : 13 Ind. Jur. 104 on which the appellant relies. We find against his contention. As it is open to the judgment-debtor to bring a suit of the nature contemplated in Order XXI, Rule 63, of the Code of Civil Procedure, it is not necessary for him to include a prayer for possession in his plaint, and it is unnecessary for us to consider whether he is in possession or not.

(3.) The remainder of the argument has been directed towards showing that the judgment is, as regards particular points, not based on or against the evidence. We cannot call the discussion of the evidence in the judgment satisfactory. But we do not think that there was an absence of evidence or disregard of evidence on the points in question which would justify our interference in second appeal.