SRI SRI SIR VIKRAMADEO MAHARAJULU GARU MAHARAJA OF JEYPORE Vs. HARI KRISHNA PATRO ALIAS RAGHU NATHA PATRO

JUDGEMENT

(1.) The question for decision is whether under the law prevailing in the Vizagapatam Agency, a suit will lie for a declaration that a certain property in respect of which a claim petition has been allowed is the property of the judgment-debtor. The plaintiff is the Maharajah of Jeypore

(2.) In execution of a decree for costs, he got attached a tope, to which the 3rd defendant advanced a claim that it was in his possession on behalf of a deity to whom it had been gifted before the attachment. The Special Assistant Agent, upon evidence recorded by the Agency Munsif of Jeypore and upon a report, ordered the attachment to be withdrawn and the execution petition to be struck off the file. Now the plaintiff has brought this suit to establish the title of defendants Nos. 1 and 2 to the said tope and to get the order on the claim petition vacated. Both the Special Assistant Agent and the Agent to the Governor have held that the suit is not maintainable.

(3.) Rule XXVI, Clause 2, of the rules framed by the Government under Act XXIV of 1839 for the guidance of the Courts in these Scheduled Districts permits decrees for a sum of money to be executed by selling the lands and other effects belonging to the party against whom the judgment may have been given. Where a question, is raised whether one of the items attached does in fact belong to the judgment-debtor, the parties have in justice and equity a right to get this question determined even though the rules may not expressly provide for claim petitions, and in the present case they did get the ownership of the tope decided by the Special Assistant Agent s order of June 19th, 1909. Order XXI, Rule 63, of the Civil Procedure Code; which gives the right to a party against whom an order in a claim petition is made to institute a suit to establish the right which he asserts, is a provision of the nature of an appeal, as it provides for the decision of a competent Court of civil jurisdiction being superseded by another decision. This provision has not been extended to the Agency Tracts of Vizagapatam, we think, purposely to prevent the unsophisticated inhabitants of those regions being harassed by bewildering multiplicity of legal proceedings.