1. This is an application in revision under Section 115, Civil P.C. by one Bachu Lal whose objection under Order 21, Rule 58, Civil P.C. to the attachment of a house in execution of a decree has been dismissed by the learned Munsif of Cawnpore. The house in dispute originally belonged to Gokul, the opposite party No. 2, who executed two mortgages in respect thereof, one on 14th February 1934 in favour of the present applicant and the other dated 3rd December 1934 in favour of one Jagannath. A few days after the latter mortgage, that is on 18th December 1934, he transferred the house to the present applicant under a sale deed. Jagannath brought a suit (No. 809 of 1935) to enforce his mortgage by sale of the house in dispute. The present applicant, who was impleaded in that suit as a subsequent transferee, pleaded that he was a prior mortgagee and was therefore entitled to exercise the right of subrogation. It appears that in the meantime Gokul had been adjudicated an insolvent and one of the defendants in Jagannath's suit was the Official Receiver appointed by the Court in whom the assets of Gokul consisting of the house in dispute had vested. A question was therefore raised in that suit that the sale deed of 18th December 1934 executed by Gokul in favour of the present applicant will not a bona fide transaction for valuable consideration. The learned Munsif who tried that suit framed two issues, one in respect of the plea of priority taken by the present applicant and the other in respect of the question whether he was a bona lido purchaser for valuable consideration. It appears that the present applicant did not care to produce any evidence to establish that he was a bona fide purchaser for valuable consideration and hence the learned Munsif decided the issue upon that point against him in the following terms:
Bachu Lal, defendant 3, has given no evidence to prove the sain deed in his favour, though he admits that he JIIMS purchased the mortgaged property and is in possession thereof. The burden to prove his bona fides lay on him, and I hold that lie is not a purchaser bona fide. Issue is decided accordingly.
2. Curiously enough inspite of this finding, whoa the learned Munsif proceeded to consider and decide the other issue relating to the applicant's right of priority as a mortgagee, ho arrived at the result that the applicant having purchased the mortgaged property, his rights as a mortgagee were merged in the right of ownership and hence ho had no charge left upon the property, and standing only in the position of the mortgagor could not claim any priority under Sections 91 and 92, T.P. Act. His finding upon that issue is in the following terms:
In my view, defendant 3 has no such right lift in view of the provisions of Section 91 read with Section 92 of the amended Transfer of Property Act. Under the provisions of Section 92, the right of subrogation is given to persons referred to in Section 91. Section 91(a) gives a right of redemption to any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in or charge upon the right to redeem the same. Defendant 3 after the purchase of the mortgaged property has mi charge loft upon the right to redeem. His mortgagee right; merged in the right of ownership, lie becomes in the position of a mortgagor so far as the plaintiff is concerned. The prior mortgagee and no decree upon his mortgage in which the plaintiff, subsequent mortgagee, was a party. This is the case of a voluntary private sale and purchase by defendant 8, Therefore para. 1 of Section 92, T.P. Act, does not apply to this case. Defendant 3 is not entitled to subrogate. No intention to keep alive the rights of defendant 3 under his mortgage in shown. This issue is decided accordingly.
3. Having arrived at these findings, the learned Munsif decreed Jagannath's suit against all the defendants including the present applicant who appealed from the decree and succeeded to this extent, that the Appellate Court held that though he could not exercise the right of subrogation, yet he had a charge upon the property under Section 100, T.P. Act. Taking this view, the Appellate Court directed Jagannath to redeem the prior mortgage in favour of the appellant and then to sell the mortgaged property in order to recover the money due on his own mortgage and also that which he had to pay in order to redeem the prior mortgage. Jagannath deposited in Court the amount necessary to redeem the applicant's mortgage; but, it appears that when he proceeded to sell the property the applicant, who was given the right to redeem Jagannath's mortgage, deposited in Court the amount due under that mortgage. In the meantime, Ram Deo, opposite party No. 1 in this case, brought a suit against Gokul in the year 1937 and obtained a simple money decree. Putting that decree into execution, he proceeded to attach the house in dispute, whereupon the present applicant made an objection under Order 21, Rule 58, Civil Procedure Code.
4. The learned Munsif of Cawnpore has dismissed that objection on the ground that the applicant has no title to the house in dispute because in the previous suit brought by Jagannath it was found against him that he was not a bona fide purchaser for valuable consideration. The applicant examined himself and a number of witnesses to prove his actual possession over the house in dispute, and this oral evidence was supported by a number of documents in the shape of kirayanamas or leases and receipts showing the payment of house-tax by him. The learned Munsif has entirely ignored the question as to whether the applicant was in actual possession of the house in dispute and, if so, whether he was in possession on behalf of the judgment-debtor. He has based his order rejecting the applicant's objection solely on the ground of want of title. Hence the present application in revision. The argument on behalf of the applicant is that in deciding the question of title and ignoring that of actual possession, the learned Munsif has acted with material irregularity in the exercise of his jurisdiction and his order rejecting the applicant's objection is therefore liable to be set aside. This contention is obviously well founded on Order 21, Rules 58 and 60. Rule 58 runs as follows:
Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector and in all other respects as if he was a party to the suit.
5. Rule 60 provides that:
Where upon the said investigation the Court is satisfied that for the reason stated in the claim or objection such property was not, when attached, in the possession of the judgment-debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him or that being in the possession of the judgment-debtor at such time, 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 make an order releasing the property, wholly or to such extent, us it thinks fit from attachment.
6. From these two rules it is perfectly clear that the Court's duty in dealing with an objection under Order 21, Rule 58 is to concentrate on the question of possession and to decide whether the judgment-debtor is in possession of the property on his own behalf or on account of or in trust for some other person. If the Court finds that the property is in the actual possession of some, person other than the judgment-debtor, then it has to decide whether that possession is in trust for or on behalf of the judgment-debtor. The Court is not concerned with the question of title to the property and is in fact incompetent to consider and decide that, question. The order of release or otherwise must be based entirely upon the finding on the question of possession. The provisions of Rule 60 are clearly mandatory and any breach of those provisions is at the very least a material irregularity. This view of the law is supported by a number of decisions of every High Court. It is sufficient to refer to the following cases : Phomon Singh v. A.J. Wells (1923) 10 A.I.R. Rang 195, Sujat Ali Khan v. Bhao Singh (1927) 14 A.I.R. Nag 286, Appaswamy v. Balkrishna Pillai : AIR1925Mad588 , Ramaswami Goundan v. Karrupa Mudali (1928) 15 A.I.R. Mad. 163, Mt. nainu v. Bhupendra Nath (1920) 7 A.I.R. Pat. 790, Anand Prasad v. Gopal Das (1927) 14 A.I.R. Pat. 316, Bhado Mander v. Khoda Bux (1929) 16 A.I.R. Pat 476, Janki Mahton v. Baij Nath Prasad Singh (1933) 20 A.I.R. Pat. 158 and Imam Din v. Mathra Dass (1931) 18 A.I.R. Lah. 666. The argument on the other side is that in view of Order 21, Rule 63, the learned Munsifs order cannot be interfered with in revision and the only remedy left to the applicant is by means of a suit. Rule 63 runs as follows:
Where a claim or an objection is preferred the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive.
7. It is argued that the language of Rule 63 necessarily places a limit upon the power of the High Court to interfere in revision with an order passed by the lower Court under Order 21, Rule 58 allowing or rejecting an objection. It is further pointed out that in a long series of decisions ending with the case in Shair Ali v. Jagmohan Ram : AIR1931All333 this Court has held that its revisional power cannot be invoked by a party to whom some other remedy is still open. In Shair Ali v. Jagmohan Ram : AIR1931All333 it was held that:
The right to file a civil revision under Section 115 is dependent upon the fulfilment of the condition that no other remedy by suit, by application or by appeal is available to the applicant. It is a recognized rule of procedure that the special and extraordinary remedy by invoking the revisional power of this Court should not be exercised unless as a last resort for an aggrieved litigant : Sunder Das v. Mansa Ram (1885) 7 All. 407, Siva Nathaji v. Joma Kasinath (1883) 7 Bom. 341, Sheo Prasad Singh v. Kastura Kuer (1888) 10 All. 119, Gopal Das v. Alaf Khan (1889) 11 All. 383 and J.J. Guise v. Jaisraj (1893) 15 All. 405.
8. Upon a careful consideration of all the cases referred to on either side, I find that the weight of authority is in favour of the applicant's contention. Two of the cases relied upon by the applicant, namely Phomon Singh v. A.J. Wells (1923) 10 A.I.R. Rang. 195 and Sujat Ali Khan v. Bhao Singh (1927) 14 A.I.R. nag. 286 are directly in point. The argument advanced on behalf of the opposite party was considered in these cases and definitely repelled. It was held that the word 'conflictive' used in Order 21, Rule 63, means nothing more than 'final', that is unappeasable, and it does not preclude the power of the High Court to interfere in revision. In the Madras and Patna cases referred to above thorn is no direct reference to Order 21, Rule 63; but they are all cases in which the High Court interfered in revision with an order allowing or rejecting an objection under Order 21, Rule 58. So far as the Patna and Madras High Courts are concerned, it appears that it is taken for granted that Order 21, Rule 63 does not preclude the power of the High Court to interfere in revision and no question to the contrary is consequently rained in any case. The Lahore High Court has also taken the same view in Imam Din v. Mathra Dass (1931) 18 A.I.R. Lah. 666, though there is no direct reference to Order 21, Rule 63.
9. Coming now to the cases of this High Court referred to by the learned Counsel for the opposite party, it has to be conceded that the trend of the earlier authorities was to hold that the High Court had no power to interfere in revision where any other remedy was open to the applicant the last case laying down that rule was that of Shair Ali v. Jagmohan Ram (1931) 18 A.I.R. All. 333 which has been referred to above. Since then however, there has been a Full Bench decision of this Court in Lila v. Mahange : AIR1931All632 in which the decision in Shair Ali v. Jagmohan Ram : AIR1931All333 win, referred to but not followed, though not expressly dissented from. The earlier rule laying down that a condition precedent to the interference of the High Court in revision was the absence of any other remedy for the applicant was modified as would appear from the observations made by Sulaiman, Ag. C.J. who overruled a preliminary objection taken to the hearing of a revision in that case on the ground that there was another remedy by way of a separate suit open to the applicant. After referring to the preliminary objection and the case in Shair Ali v. Jagmohan Ram : AIR1931All333 on which it was founded, Sulaiman, Ag. C.J. observed as follows:
Section 115 is no doubt discretionary and therefore it is open to the High Court to decline to interfere in particular cases. As a matter of practice it may be conceded that ordinarily the High Court would not interfere if another convenient remedy is open to an applicant, particularly when that remedy is by way of appeal to a lower Court. But it cannot be laid down as a general proposition that the High Court has no power of interference at all or should not interfere where there is another remedy by way of a suit open to the applicant. The remedy by way of a separate suit; would involve protracted litigation through several Courts and is not always a convenient remedy when a more effective and speedy remedy is available. There is no justification for restricting the power conferred on the High Court under Section 115 by laying down that no revision should be entertained, when a remedy by suit lies. Bach case must be considered on its own merits and if the Court below has acted without jurisdiction or with, material irregularity and the applicant has been-seriously prejudiced and interference is called for in the interests of justice, there is no reason why we should drive the applicant to a more circuitous remedy by way of a separate suit.
10. This decision was followed by another in the Division Bench case in Rajeshwari Bibi v. Hari Ram : AIR1933All751 . In this case Sulaiman, Ag. C.J. and Young, J. set aside in revision an order passed by the lower Court dismissing an objection under Order 21, Rule 58, on the ground that there was an unnecessary delay without giving an opportunity to the objector or his counsel to explain the delay. It is thus clear that the view which now prevails in this High Court is that its power of interference in revision with an order passed under Order 21, Rule 58, is not precluded by the fact that a remedy by way of a suit is open to the applicant under Order 21, Rule 63. I am therefore of the opinion that the weight of authority is decidedly against the objection raised by the learned Counsel for the opposite party, and I consequently overrule it.
11. As regards the merits of the case, I have already shown above that in dismissing the applicant's objection the learned Munsif exceeded his jurisdiction by entering into the question of title instead of concentrating himself on the question of possession. It is further clear that even his conclusion on the question of title is not really correct, because in the previous litigation to which he has referred the judgment of the trial Court as well as the Appellate Court proceeded upon the assumption that the applicant had purchased the property in dispute. I am therefore of the opinion that it is a fit case in which the High Court should interfere. The result therefore is that I allow this application in revision and setting aside the order passed by the learned Munsif direct that he shall re-hear the objection made by the applicant and decide it in, accordance with the law and in the light of the observations made in this judgment The costs shall abide the event.