BARARI CO-OPERATIVE BANK, LTD Vs. SINGHESWAR JHA

JUDGEMENT

(1.) THE petitioner put into execution a decree against the opposite party by attaching certain land which was in his possession. THE judgment-debtor took the objection that he held this land not in his private or personal capacity: the land was debuttar land, and he held it by virtue of the performance of certain sacrifices for the temple to the service of which the land was dedicated. THE objection was dismissed for default by the Munsif and the objector appealed to the District Judge. THE District Judge held that the objection fell within the provision of Section 47, Civil P.C. THE order of the Munsif was therefore appealable: and he set the order aside and directed that the objection should be heard. It is argued on behalf of the decree-holder petitioner, the Barari Co-operative Bank, that this objection properly fell under Order 21, Rule 58, so that no appeal lay to the District Judge, and he had no jurisdiction to set aside the order of the Munsif. THE learned Advocate relies particularly on two decisions, that of a Full Bench of the Calcutta High Court in Kartick Chandra Ghosh V/s. Ashutosh Dhara (1912) 39 Cal 298 and that of the Division Bench of this Court in Nazir Hussain V/s. Ejaz Hussain 1922 Pat 196. In the Calcutta case a judgment-debtor objected that he held the attached property as shebait, not in his personal capacity; and it was held by the Court that an objection made in this manner by a shebait could not be treated as an objection made by a party to the decree, so that the provisions of Section 47, Civil P.C., or Section 244, as it was then, did not apply to the case.

(2.) IN the Patna case the judgment-debtor took the objection that the property attached was wakf, and following the decision in Kartick Chandra Ghosh v. Ashutosh Dhara (1912) 39 Cal 298 the Judges held that no appeal lay to the District Judge, because the objection was an application under Order 21, Rule 58. Mr. G.N. Mukharji on behalf of the opposite party suggests that this rule can only apply when the objection is made by a shebait or mutawali or a trustee; but I think it must be held to apply in all instances in which the judgment-debtor makes the objection not in his personal capacity but in a representative capacity, that is to say, when he claims to be merely holding the land on behalf of somebody else. IN the present case the judgment-debtor is himself holding the land on behalf of the deity to whom it had been dedicated in consideration of his performing certain services for that deity; and the principle laid down in the decisions cited on behalf of the petitioner must be held to apply. The application was therefore made under Order 21, Rule 58. The District Judge had no jurisdiction to set aside the order of the Munsif and his order in appeal must be set aside. The application is allowed with costs. Hearing fee one gold mohur.