SOMWAR GIR Vs. GOSWAMI MAYANAND GIR

JUDGEMENT

(1.) This professes to be an execution first appeal on behalf of a decree-holder, Mahant Somwar Gir. Mr. Pande has appeared for the appellant; the opposite side is not represented. The first question we have to consider is whether an appeal lies. The facts of the case are as follows: The decree-holder appellant obtained a simple money decree against the judgment-debtor on 17 February 1926. Execution was applied for in May 1926, and as the result of this there were attached certain properties-zamindari, house property etc., as also certain decrees which had been obtained by the judgment-debtor against third parties.

(2.) On 16 June 1926, the judgment-debtor put in an objection to the attachment of certain house property mentioned in list B. His plea was that this property was not liable to attachment and sale in execution of the decree obtained against him, by Mahant Somwar Gir because it was not his personal property at all but was property belonging to a Math. In substance the objection was to the effect that this house property was in the possession of the judgment-debtor as a trustee for the Math.

(3.) This objection was dismissed for default on 20 November 1926. On the same day the judgment-debtor's counsel asked for restoration of the case, but this application was refused on the ground that Order 9, Rule 9 did not apply to proceedings in execution of decree. After this an application was made for review of judgment and it seems this was entertained by the Court below and finally allowed. The Court held that the house property belonged to the Math and was not liable to be attached and sold in execution of Mahant Somwar Gir's decree. The decree-holder now comes up in appeal. It appears to us, having regard to the circumstances of this case and to the nature of the objection which was put forward by the judgment-debtor in the Court below, that this is not a case in which an appeal is allowable. It seems to us that the objection which the judgment- debtor preferred to the attachment and sale was one under Order 21, Rule 58, and consequently the order of the Court below which is now under appeal before us must be deemed to be an order under Rule 60, Order 21. If that is so it follows that the person against whom this order has been passed has no remedy by way of appeal. His remedy is by way of a suit see Order 21, Rule 63.