SASHI DULAL PYNE Vs. NANDA LAL DAS

JUDGEMENT

(1.) THIS rule must be made absolute. It appears that the opposite party preferred a claim under the provisions of Order 38, Civil P.C., to an attachment of the disputed properties before judgment. On 14 March 1928 that claim was rejected by the Munsif as untimely and on the further ground that the decree-holder's attachment preceded the auction-sale of the opposite party. On 20 March 1928 an application was made by the opposite party before the Munsif under Section 151, Civil P.C., and that application was allowed by the Munsif on the ground that he had rejected the application summarily on 14 March 1928, not taking into consideration the provisions of Order 38, Rule 10, Civil P.C. The Munsif really set aside the previous order on the ground that he had passed the previous order on a misconception of the law. That certainly was not a ground which justified him in setting aside the order purported to have been made by way of review under Section 151 of the Code. His order under Section 151 was made without jurisdiction and must be set aside. It is argued however, by the learned advocate for the opposite party that even if the order is made without jurisdiction, this Court is not bound to interfere, seeing that his client had purchased these properties in execution of a decree subsequent to the attachment. There is, however, no force in this contention for if that is his case, he is not a person who can put in a claim under Order 21, Rule 58, Civil P.C., or under the provisions of Order 38 of the Code. The procedure to be followed in investigation of claims under the provisions of, Order 38 is the same as the procedure to be followed under Order 21, Rule 58 and the subsequent sections of the Code. Order 21, Rule 59 of the Code indicates the scope of the enquiry under Order 21, Rule 58, and it limits the enquiry to this, that the claimant must show that at the date of attachment he had some interest in or was possessed of the properties attached.

(2.) NOW on the claimant opposite party's own showing, at the date of attachment he had no interest in or was not possessed of the properties attached for the claimant had only then a decree against the judgment-debtor whose properties were attached. There had been no sale in execution of that decree and consequently it cannot be said that the claimant opposite party had at the date of the attachment any interest in or that he had possession in the properties attached, so, on the, claimant's own case he is not a person who can come in under Order 21, Rule 58. He may have other remedies. All that order Order 38, Rule 10, says is that the rights of such a purchaser as the claimant is, will not be affected by reason of any order of attachment before judgment that might have properly been made. The order made by the Munsif is clearly without jurisdiction and must be set aside. The petitioner is entitled to the costs of this rule. I assess the hearing fee at one gold mohur.