RAMASWAMI GOUNDAN Vs. KARUPPA MUDALI

JUDGEMENT

(1.) In execution of a money decree passed against the assets of one Nallasami Goundan deceased, the respondent, decree-holder, attached some immoveable properties as the properties of the said Nallasami Goundan. Thereupon the petitioners preferred a claim under Order 21, Rule 58, alleging that the said properties are in their possession on their own account and are not liable to be attached in execution of the decree against Nallasami Goundan. The District Munsif has dismissed their claim. In his order he finds in favour of the claimants that they were in possession of the properties attached, but he comes to the conclusion that the claim must be dismissed because upon the evidence adduced before him, he is satisfied that a prima facie title to the property in the judgment-debtor has been made out. The decree-holder's case was that the property belonged to Nallasami Goundan who had become divided from the claimants who are his brothers and that Nallasami Goundan settled his properties upon his wife and daughters as he was entitled to do. The claimants case on the other hand was that they and Nallasami Goundan were undivided and that the properties belonged to the joint family and on Nallasami Goundan's death they became entitled to his interest also by survivorship and that the said properties are not therefore liable to be attached in execution of the decree. The District Munsif has gone into those questions which relate to the title to the property and decided them against the claimants and upon those findings he has disallowed the claim.

(2.) In my opinion the District Munsif has, in investigating the claim, entertained questions as to the title to the property attached which do not fall within the scope of the inquiry directed under Order 21, Rules 59 to 61. In investigating the claim preferred by the claimants, the only questions which the Court is competent to consider are whether the property when it was attached was in the possession of the judgment-debtor as his own property; if such property was in the possession of some other person, whether it was in his possession in trust for the Judgment-debtor, or in the claimant's occupation as the tenant of the judgment-debtor. In this case it is not upon any of these grounds that the claim has been disallowed, but it is upon the finding that the title to the properties was in Nallasami Goundan exclusively and on his death the properties have come to his wife and daughters under a settlement made by him. An investigation of such questions of title to the properties is entirely beyond the scope of the investigation directed by the Code when a claim to attached properties is preferred. As the District Munsif has in disposing of the claim petition exceeded his jurisdiction by trying questions of title to the property and deciding the claim on such findings, his order must be set aside. The possession of the petitioners to the attached properties on their own account being found, their claim should have been allowed.

(3.) I therefore set aside the order of the District Munsif dismissing the claim and in lieu thereof there will be an order allowing the claim and directing that the properties be released from the attachment. The respondent should pay the petitioners costs in this Court and in the lower court.