MITCHELL Vs. MATHURA DASS

JUDGEMENT

(1.) THEIR Lordships are of opinion that the decision of the High Court in this ease was erroneous, and that it ought to be reversed.

(2.) IT appears that an action was brought on the 14th of June, 1880, praying:--" That a decree for establishment of right, as provided by Section 283 of Act X. of 1877, be passed, with the order that the disputed property is the property of W. Mitchell, judgment debtor, and is liable to be sold by auction in execution of the Plaintiffs decree." On the 11th of June, 1879, the Plaintiffs obtained a decree under an arbitration award against William Mitchell. In the execution of that decree a screw-house, which was in the possession, of William, Mitchell, was attached. Upon that attachment being made Alexander Mitchell, the father of the Defendant William, objected, and claimed that the property was not the property of William, but was the property of him, Alexander. The matter was investigated by the Court out of which the execution issued, in accordance with the provisions of the Code of Procedure; and having received evidence in the case, the Court decided that the property belonged to Alexander and not to William, and released it from execution. That order was not appealable; but the Plaintiff, the then execution creditor, being dissatisfied with the order, the present suit was commenced, in accordance with the provisions of the Code of Procedure, to have it declared that the property was the property of the son, and liable to be seized in execution; it was in substance to reverse the order of the Court out of which the execution issued.

(3.) IT was proved that the consideration money for the conveyance was paid by Alexander Mitchell. It was not paid by William Mitchell in Cawnpore, but to Nicol Fleming & Co. in England by Alexander Mitchell, who lived in Scotland.