KRISHNASWAMY GOUNDER Vs. NAGARATHNAMMAL

JUDGEMENT

(1.) This is an appeal from an order of our brother Waller, J., dismissing a claim petition. The respondent obtained a sale decree in C.S. No. 510 of 1924 on a mortgage deed executed in 1914 by the defendant in that suit. The present appellant then filed a claim petition claiming the property basing his claim on a sale deed executed in 1904. The learned Judge dismissed the claim. The appeal is against that order.

(2.) The learned advocate for the respondent draws our attention to an objection that a claim petition does not lie in the case of a sale decree. It is true, this objection was not taken before Waller, J. but all the same it is an objection which must be given effect to; see Deefholts v. Peters [1887] 14 Clause 631 Sanwal Das V/s. Bismillah Begam [1897] 19 All. 480 and Hukam Singh V/s. Raghubar Saran (1905] 27 All, 700. The remedies of the appellant are as indicated in the decision in Sanwal Das V/s. Bismillah Begam [1897] 19 All. 480 either to file a suit for recovery or to resist delivery proceedings if he is really in possession. The appeal must be dismissed on this ground but as the objection was not taken in the lower Court we disallow costs in appeal. The costs awarded in the lower Court will stand. The respondent is entitled to draw her costs if deposited in Court; the balance if and will be paid to the appellant. Cornish, J.

(3.) I agree.