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Chimanlal Balabhai Vs. N.C. Macleod - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Application No. 130 of 1906
Judge
Reported in(1906)8BOMLR794
AppellantChimanlal Balabhai
RespondentN.C. Macleod
DispositionApplication allowed
Excerpt:
.....if the court is satisfied that the property was, at the time at which it was attached, in possession of the judgment-debtor as his own property and not on account of any other person, the court shall disallow the claim. 13. the subordinate judge has not considered the points set forth in the section, and it is for that reason that he has failed to exercise the jurisdiction vested in him......k.c.i.e., c.j.1. this application arises out of an order by the subordinate judge purporting to release property from attachment under section 280 of the civil procedure code.2. the application is made to us under section 622, and we have had considerable doubt as to whether to intefere or not, but having regard to the fact that, in our opinion, the judge has not merely committed an irregularity in his investigation, but has held no such investigation as is contemplated by section 280, we have decided to intervene. at the same time we desire to keep strictly within the limits indicated by section 622.3. we express no opinion on the facts or on the law.4. the execution proceedings arose out of a suit for money in which a decree was passed. there was an attachment before judgment and.....
Judgment:

Lawrence Jenkins, K.C.I.E., C.J.

1. This application arises out of an order by the Subordinate Judge purporting to release property from attachment under Section 280 of the Civil Procedure Code.

2. The application is made to us under Section 622, and We have had considerable doubt as to whether to intefere or not, but having regard to the fact that, in our opinion, the Judge has not merely committed an irregularity in his investigation, but has held no such investigation as is contemplated by Section 280, we have decided to intervene. At the same time we desire to keep strictly within the limits indicated by Section 622.

3. We express no opinion on the facts or on the law.

4. The execution proceedings arose out of a suit for money in which a decree was passed. There was an attachment before judgment and subsequently after decree an application for sale.

5. This was not preceded by any attachment after decree, the attachment before judgment being operative under Section 490 for the purposes of the Execution Chapter.

6. The claimant set up a title to the property as the Official Assignee in the insolvency of one of the heirs of the judgment-debtor.

7. The question as formulated by the learned Subordinate Judge was in these terms, 'How far the attachment, which was effected during the lifetime of Abdulalli, avails the opponents in resisting the claim of the petitioner.'

8. That was not the question before the learned Subordinate Judge.

9. A release from attachment under the provisions of the Code can only be made under Section 280.

10. Section 280 indicates the conditions on which alone that release can be directed.

11. So a Court, before directing a release, must hold those conditions established.

12. Now what are those conditions Those parts of the section that are relevant to this case, run as follows :-

If upon the said investigation the Court is satisfied that, for the reasons stated in the claim or objection, such property was not, when attached, in the possession of the judgmentdebtor' 'or that, being in the possession of the judgmentdebtor, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the Court shall pass an order for releasing the property.' Section 281 on the other hand provides that, if the Court is satisfied that the property was, at the time at which it was attached, in possession of the judgment-debtor as his own property and not on account of any other person, the Court shall disallow the claim.

13. The Subordinate Judge has not considered the points set forth in the section, and it is for that reason that he has failed to exercise the jurisdiction vested in him.

14. We must, therefore, set aside the order and send back the case in order that it may be determined in accordance with the provisions of the Code of Civil Procedure

15. The costs will abide the result.


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