JAMNABAI GULABCHAND GUJARATI Vs. DATTATRAYA RAMCHANDRA GUJARATI

JUDGEMENT

(1.) This is a second appeal from a decision of the Assistant Judge, Poona, confirming a decree made by the Subordinate Judge, Poona. The material facts are that in 1926 defendant No. 2, who is the wife of defendant No. 1, purchased a certain house. In 1927 the plaintiff obtained a decree against defendant No. 1 in the Small Causes Court at Poona, and in due course he filed a darkhast to recover the amount of his decree by sale of the house which had been purchased by defendant No. 2, the contention of the plaintiff being that defendant No. 2 purchased the house as benamidar for her husband, defendant No. 1. On July 21, 1929, the house was attached, and defendant No. 2 objected to the attachment under Order XXI, Rule 58, Civil Procedure Code. Thereupon the plaintiff withdrew the attachment, and the darkhast was disposed of. On October 1, 1929, the plaintiff started this suit asking for a declaration that the house in dispute is owned by defendant No. 1 and was purchased benami in the name of defendant No. 2, and that it is liable to attachment and sale in execution of the plaintiff's decree.

(2.) Both the lower Courts held on the merits that the house was purchased in the name of defendant No. 2 as benamidar for defendant No. 1. That question is really one of fact, and it has not been suggested in second appeal that I should interfere with the concurrent findings of the lower Courts on that point.

(3.) It is argued, however, that the plaintiff's suit does not lie. Both the lower Courts agreed that the suit does not fall within Order XXI, Rule 63, Civil Procedure Code, which provides that- Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive. That rule would have applied if the plaintiff had not withdrawn his attachment and an order had been made against him dismissing his attachment. But as that course was not adopted, 1 agree with the lower Courts that the case does not fall within Order XXI, Rule 63, Civil Procedure Code.