Skip to content


Nalinkant Bhanushanker Dave Vs. Hiralal Amratlal Parekh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 45 of 1956
Judge
Reported inAIR1959Bom87; (1958)60BOMLR234; ILR1957Bom553
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 58 and 59
AppellantNalinkant Bhanushanker Dave
RespondentHiralal Amratlal Parekh and ors.
Appellant AdvocateG.B. Joshi, Adv.
Respondent AdvocateH.C. Shah, Adv.
Excerpt:
.....of jurisdiction. - the possession of nutan theatre was handed over by opponents 3 to 9 to nautamlal on 26-4-51, but they failed to execute the document of sale in favour of nautamlal as agreed to by them. nautamlal on his part failed to execute the document of mortgage in favour of tarachand and so tarachand filed a suit no. the said defendants having failed to execute the sale deed tarachand field darkhast no. they thus fail to establish the ingredients of rule 59 and they have therefore no right to maintain the application for removal of attachment......decree, had no right of ownership nor any other rights in the property and they were not in possession. opponents 1 and 2 further aver that they had been put in possession of the property on 11-2-55 and that is why they were entitled to have the attachment removed. it is admitted on behalf of the decree-holder nalinkant, and in fact that is his case also, that nautamlal has been in possession of the property every since 26-4-51, but he contents that the legal ownership in the property remained in opponents 3 to 9 and that nautamlal's possession should be treated as on behalf of the said opponents 3 to 9. whatever might be the merits of that contention, the real question is whether the present opponents 1 and 2, who come in as third parties for removal of attachment under order 21,.....
Judgment:
ORDER

1. This is a revision application against anorder of the Civil Judge, Senior Division, Rajkot, allowing an application made by opponents 1 and 2 Hiralal Amratlal and Ramniklal Amratlal for the removal of Attachment under Order 21, Rule 58 C.P. Code levied by the present applicant Nalinkant Bhanushanker in execution of a money decree obtained by him against opponents 3 to 9 in civil suit No. 70 of 1950 of the Rajkot Civil Court. It is necessary to et out certain facts in order to understand and appreciate the dispute properly. The property attached is a theatre known as 'Nutan Theatre' situated at Rajkot. This property along with other property was owned by opponents 3 to 9 (original defendants 2 to 8) and was mortgaged by them to Hiralal Amratlal, opponent 1, and his brother Jayantilal Amratlal and in suit No. 415 of 1950 of the Rajkot Court the said mortgagees obtained a decree on the mortgage for Rs. 4,95,000 together with costs and further interest. One Nautamlal Chhotalal Tejpal then offered to purchase the Nutan Theatre from opponents 3 to 9 and the said opponents 3 to 9 passe dan agreement of sale, in his favour for Rs. 4,40,005. Nautamlal paid the consideration to the said opponents 3 to 9 and this sum he borrowed from Tarachand Amratlal, who is a brother of opponents 1 and 2 Hiralal and Ramniklal and in lieu thereof Nautamlal executed an agreement in favour of the said Tarachand Amratlal to mortgages the Theatre along with his own house and in the meantime passed a promissory note for Rs. 4,40,005 to Tarachand. The possession of Nutan Theatre was handed over by opponents 3 to 9 to Nautamlal on 26-4-51, but they failed to execute the document of sale in favour of Nautamlal as agreed to by them. Nautamlal on his part failed to execute the document of mortgage in favour of Tarachand and so Tarachand filed a suit No. 293 of 1954 for specific performance of the said agreement against Nautamlal and against opponents 3 to 9 claiming reliefs, inter alia that defendants 2 to 8 of that suit (present opponent 3 to 9) should be ordered to execute a documents of sale in favour of Nautamlal and that Nautamlal on his part should be ordered to execute a document of mortgage in favour of Tarachand. This suit ended in a consent decree on 30-10-54 whereby defendants 2 to 8 were to execute the documents of sale directly to Tarachand or his nominees and Nautamlal was to join in execution of that sale deed. The said defendants having failed to execute the sale deed Tarachand field Darkhast No. 408 of 1954 on 3-12-54 for the execution of the sale deed as provided by the decree and while the Darkhast was pending Nalinkant Bhanushanker, the present applicant filed a Darkhast on 3-12-55 to execute his own decree against the said defendants 2 to 8 (opponents 3 to 9) and attached the Nutan Theatre. As the consent decree in suit N. 293/54 provided that the sale deed was to be executed either in favour of Tarachand or his nominee, Tarachand nominated Nos. 1 and 2 Hiralal and Ramniklal, and on 11-2-55 on the orders of the executing Court, the Nazar of the Court executed a sale deed of the Nutan Theatre in their favour as nominees of Tarachand. The on 3-3-55 opponents Nos. 1 and 2 applied for removal of the attachment of the Nutan Theatre on the ground that they were the legal owners of the property and had received actual possession of the Theatre on 11-2-55. The learned Civil Judge Senior Division, allowed this claim and ordered removal of the attachment and it is against this order that the decree-holder Nalinkant has come in revision.

2. The first contention made by Mr. Joshi, who appears for the decree-holder is that opponents 1 and 2 had no locus standi to apply for removal of the attachment, in that they had no interest in the property at the date of the attachment no were they in possession thereof and their application under Order 21, Rule 58 was not maintainable at all. Now Order 21, Rule 59, C.P. Code requires that the claimant applying for he removal of attachment must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of the property attached. It is an agreed position that Nautamlal was put in possession of the Nutan Theatre on 26-4-51 and that he has been in continuous possession thereof ever since then. This is admitted by the present opponents I and 2 in para 4 of the their applications, and their allegation rather is that opponents 3 to 9, meaning the judgment debtors of Nalinkant's decree, had no right of ownership nor any other rights in the property and they were not in possession. Opponents 1 and 2 further aver that they had been put in possession of the property on 11-2-55 and that is why they were entitled to have the attachment removed. It is admitted on behalf of the decree-holder Nalinkant, and in fact that is his case also, that Nautamlal has been in possession of the property every since 26-4-51, but he contents that the legal ownership in the property remained in opponents 3 to 9 and that Nautamlal's possession should be treated as on behalf of the said opponents 3 to 9. Whatever might be the merits of that contention, the real question is whether the present opponents 1 and 2, who come in as third parties for removal of attachment under Order 21, Rule 58, C. P. Code, fulfil the requirements of Order 21, Rule 59 of the Code. As the this, Mr. Shah has urged that on the consent decree being passed on 30-10-54, defendants 2 to 8 (opponents 3 to 9) remained mere trustees, for Nautamlal, of the legal title vesting i them, that by the consent decree they had agreed to sell the property to Tarachand, that Nautamlal had also agreed to join in executing the sale deed, that Nautamlal had a charge on the property to the extent of Rs. 4,40,005 paid to defendants 2 to 8, that on Nautamlal's agreeing to convey the property to Tarachand and having acknowledged the receipt of the full consideration, Nautamlal's right in the property came to be vested in Tarachand and that on 3-12.54 by the Darkhast Tarachand having nominated Hiralal and Ramniklal as his nominees, the said Hiralal and Ramniklal came to own the same interest in the property as Tarachand. Now this is indeed a complicated and involved process of reasoning. The question as to what interest Tarachand or his nominees came to acquire in the property by virtue of the consent decree falls totally outside the ambit of an inquiry in a claim filed under Order 21, Rule 58, C. P. Code. The scope of that inquiry is to be restricted to a summary investigation into the question of possession as distinct groom a thorough trial of ultimate right, and therefore an elaborate inquiry into the question of title cannot be gone into in such an application. The claimant objecting to the attachment has to show that at the date of the attachment he had some interest in the property or was possessed thereof and the words 'some interest' occurring in Rule 59 have been interpreted as meaning such interest as would make the possession of the judgment-debtor not on his own account but on account of or in trust for the claimant. See Satkari Mandal v. Tirtha Narain, AIR 1915 Cal 116 , or the claimant may prove his own possession. It is only in such cases that a claim for removal of attachment can succeed. Now here it is not the opponent 1 and 2's case that the judgment-debtors opponents 3 to 9 are in possession on that their meaning opponent 1 and 2's account. On the contrary in para 4 of the application they themselves aver that the possession was with Nautamlal since 26-4-51 and that the applicants (opponents 1 and 2) came into possession of the property on 11-2-55, that is to say, subsequent to the attachment levied by the decree-holder Nalinkant. Opponents 1 and 2 do not claim to be in actual possession of the property at the date of the attachment, viz., 3-2-55 nor is it their case that Nautamlal is in possession on their behalf though this factor is not relevant in this case. They thus fail to establish the ingredients of Rule 59 and they have therefore no right to maintain the application for removal of attachment. The order of the learned Civil judge, Senior Division, cannot therefore be sustained and must be set aside. It is true that the property was not in possession of the judgment debtor at the time of the attachment but was in possession of Nautamlal, and therefore it may be for Nautamlal to object to the attachment, but not for opponents 1 and 2.

3. Accordingly this revision application is allowed, the order of the learned Civil Judge, Senior Division, is set aside and the application filed by opponents 1 and 2 for removal of the attachment is dismissed with costs of both the Courts.

4. Revision Application allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //