APPASWAMY CHETTIAR Vs. NBALAKRISHNA PILLAI

JUDGEMENT

(1.) I am asked in this Civil Revision Petition, to set aside an order by which the learned City Civil Judge has disallowed a claim under Order 21, Rule 61, Civil Procedure Code. The decree-holder in execution of the decree in Suit No. 6974 of 1924, on the file of the Court of Small Causes, Madras, attached house and ground No. 2/50, in Swami Pandaram Street, Chintadripet, Madras, along with other properties, as properties belonging to the judgment debtor. The claimant, who is the petitioner before me, filed objections to the attachment, under Order 21, Rule 58, on the ground that he was in possession of the above house and ground that it had been duly conveyed to him by its owners and that he had been in possession of it in his own right, ever since the sale. The learned City Civil Court Judge, holding that "he was not satisfied with the bona fides of the claim or of the sale in his favour" dismissed his petition.

(2.) I think the order of the learned Judge was wrong and must be set aside. In cases coming under Order 21, Rule 58, it bas been held that the Court is bound to decide the question of possession and that, if a case is disposed of, without deciding such question, the High Court ought to interfere under Section 115 of the Civil Procedure Code : see Rangammal V/s. Sevugam Chetti (1915) 28 M.L.J. 327.

(3.) In this case, it is clear from the order that the learned Judge did not pay any attention to the question, as regards the actual possession of the house. In this connection, the following observations of the learned Judges of the Calcutta High Court, in Satkari Mandal V/s. Tirtha Narain Bhattacharjee (1914) 21 I.C. 62 may be usefully referred to: The Court cannot found its decision on the question of the validity of the claim, or the determination of the title to the property attached.... The Court below has thus refused to determine the one question it was competent to decide, namely, the question of possession and has, on the other hand, determined the question it was not competent to investigate, namely, the question of title.