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Somwar Gir Vs. Goswami Mayanand Gir and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1928All392; 113Ind.Cas.171
AppellantSomwar Gir
RespondentGoswami Mayanand Gir and anr.
Excerpt:
- - we have no doubt that the ground upon which the court below allowed the review was not a good ground in law but it cannot be said that there is any ground for revision......to the math and was not liable to be attached and sold in execution of mahant somwar gir's decree. the decree-holder now comes up in appeal. it appears to us, having regard to the circumstances of this case and to the nature of the objection which was put forward by the judgment-debtor in the court below, that this is not a case in which an appeal is allowable. it seems to us that the objection which the judgment-debtor preferred to the attachment and sale was one under order 21, rule 58, and consequently the order of the court below which is now under appeal before us must be deemed to be an order under rule 60, order 21. if that is so it follows that the person against whom this order has been passed has no remedy by way of appeal. his remedy is by way of a suit see order 21,.....
Judgment:

Lindsay, J.

1. This professes to be an execution first appeal on behalf of a decree-holder, Mahant Somwar Gir. Mr. Pande has appeared for the appellant; the opposite side is not represented. The first question we have to consider is whether an appeal lies. The facts of the case are as follows: The decree-holder appellant obtained a simple money decree against the judgment-debtor on 17th February 1926. Execution was applied for in May 1926, and as the result of this there were attached certain properties-zamindari, house property etc., as also certain decrees which had been obtained by the judgment-debtor against third parties.

2. On 16th June 1926, the judgment-debtor put in an objection to the attachment of certain house property mentioned in list B. His plea was that this property was not liable to attachment and sale in execution of the decree obtained against him, by Mahant Somwar Gir because it was not his personal property at all but was property belonging to a Math. In substance the objection was to the effect that this house property was in the possession of the judgment-debtor as a trustee for the Math.

3. This objection was dismissed for default on 20th November 1926. On the same day the judgment-debtor's counsel asked for restoration of the case, but this application was refused on the ground that Order 9, Rule 9 did not apply to proceedings in execution of decree. After this an application was made for review of judgment and it seems this was entertained by the Court below and finally allowed. The Court held that the house property belonged to the Math and was not liable to be attached and sold in execution of Mahant Somwar Gir's decree. The decree-holder now comes up in appeal. It appears to us, having regard to the circumstances of this case and to the nature of the objection which was put forward by the judgment-debtor in the Court below, that this is not a case in which an appeal is allowable. It seems to us that the objection which the judgment-debtor preferred to the attachment and sale was one under Order 21, Rule 58, and consequently the order of the Court below which is now under appeal before us must be deemed to be an order under Rule 60, Order 21. If that is so it follows that the person against whom this order has been passed has no remedy by way of appeal. His remedy is by way of a suit see Order 21, Rule 63.

4. Mr. Pande, however, has contended on behalf of the decree-holder that this application of objection ought not to be treated as having been made under Order 21, Rule 58 at all. His case is that it was an objection raised under Section 47 and that the order of the Court below must therefore be treated as a decree and liable to be appealed from.

5. We are unable to accept this contention although it finds support in a recent case of the Oudh Chief Court decided in the year 1927 (A.I.R. April 1927-Oudh section, p. 120) In this latter case a number of previous authorities are discussed and in particular there is an examination of the Full Bench decision of the Calcutta, High Court in Kartik Chandra Ghose v. Ashutosh Dhar [1911] 39 Cal. 298. Their Lordships of the Chief Court found themselves unable to accept the view which was taken in this Pull Bench decision. We find, however, that there is great mass of authority against the view which is taken by the Chief Court. Leaving aside the Calcutta Full Bench decision to which reference has just been made we find that a similar view was taken in Ramanathan Cheittar v. Levvai Marakkyar [1898] 23 Mad. 195, Murigaya v. Hayat Saheb [1898] 23 Bom. 237, Budrudeen Sahib v. Abdul Rahim [1908] 31 Mad. 125, Upendra Nath v. Kusum Kumari [1914] 42 Cal. 440 and Nazir Husain v. Mahomed Ejaz A.I.R. 1922 Pat. 196,

6. We should also refer to the Full Bench case of this Court, Seth Chand Mal v. Durga Das [1890] 12 All. 313. In that case it was held that where the legal representative asserts that the property is his own and has not come to him from the deceased judgment-debtor he cannot set up a jus tertii so as to come in under Section 278 and the following section of the Code. He can only do so where he opposes execution against any particular property on the ground that although it is vested in him, it is vested in him not beneficially by reason of his being the representative of the judgment-debtor but as trustee or executor of some one else; in that case either party may have the question of jus tertii determined in a separate suit. If that is true of a case in which the capacity of the legal representative of a judgment-debtor to raise a jus tertii was under consideration, we see no reason why such a plea is not open to the judgment-debtor himself.

7. The authorities were examined in a recent judgment of a single Judge of this Court in Bhagwan Das v. Mt. Mahmud Bano A.I.R. 1924 All. 183. There Mr. Justice Kanhaiya Lal held that, in objecting to attachment of certain properties in the execution of a decree under Order 21, Rule 58, Civil P.C., if the objector claims the property as the mutwalli of a trust he does not do so as a representative of the judgment-debtor even though the author of the trust may himself have been the judgment-debtor, except where such trust is created after the suit or the decree passed therein. We think the view taken by Mr. Justice Kanhaiya Lal is right and is supported by authority. It seems to us that in cases of this kind a judgment-debtor may fill two totally distinct legal characters. He may have property of which he is the beneficial owner. On the other hand, he may also be in possession of property which he holds in trust on behalf of a third party. If this latter property is attached in the execution of a decree obtained personally against him he is surely entitled to apply to the Court and say that the property which is being attached is not really his property at all but belongs to a third party for whom he is holding as a trustee, and an examination of the language of Order 21, Rule 60 supports this conclusion, for there it is said that

if the Court on investigation finds that property which is in the possession of the judgment-debtor at such time is 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 the Court shall make an order releasing the property wholly or to such extent as it thinks fit from the attachment.

8. It seems plain to us that a question of this kind may be raised by the judgment-debtor himself and that in such cases he is not raising it as judgment-debtor but in a totally different legal character, namely, that) of a trustee for a third person. In this view, therefore, we are of opinion that no appeal can be entertained against the order of the Court below in the present case.

9. We have been asked to treat this present appeal as an application for revision of the order of the lower Court, the ground taken being that the lower Court had no jurisdiction to entertain and allow the application for review of judgment. We have no doubt that the ground upon which the Court below allowed the review was not a good ground in law but it cannot be said that there is any ground for revision. We cannot revise the order of the lower Court merely because it came to an erroneous conclusion on a question of law raised before it. We think, therefore, this appeal fails and it is dismissed. No order as to costs as the opposite party is not represented.


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