MAROTIRAO Vs. GOVIND

JUDGEMENT

(1.) JACKSON , A.J.C. 1. Non-applicant. 1 had obtained a decree against non-applicant 2 and in execution thereof attached, according to the applicant, the applicant's property. Non-applicant ' 2 was adjudged insolvent during pendency of the applicant's objection to the attachment. The lower Court then held that its jurisdiction had ceased and dismissed the objection. The applicant seeks revision of the lower Court's order.

(2.) IT is clear that the lower Court's order is incorrect. Under Section 29, Prov. Ins. Act, the Court had only two alternative courses to select from and could only stay the proceedings or allow them to continue on terms. It is urged, however, that, in accordance with the practice of this Court; and other High Courts, there should be no revision, because the applicant has a remedy by way of suit under Order 21 Rule 63. But the rule is not an inflexible one, and may be departed from in special cases. The lower Court in the present case has, without any jurisdiction to do so, deprived the applicant of his right to have his claim decided in objection proceedings, and there has been no default or neglect on his part requiring condonaion. I consider that he should not be at this stage forced into bringing a suit. I set aside the order of the lower Court which will now decide which of the two alternative courses permitted by Section 29 should be followed. Non-applicant 1 will bear the applicant's costs. I fix pleader's fee at Rs. 15.