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Basdeo Sahai Vs. Musammat Saraswati - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in64Ind.Cas.469
AppellantBasdeo Sahai
RespondentMusammat Saraswati
Cases ReferredJ.J. Guise v. Jaisraj
Excerpt:
civil procedure code (act v of 1908), section 115, schedule ii, clause (1) - revision--remedy, another, open--arbitration, reference to--parties, necessary. - - this objection is in my opinion well-founded......has been taken to the hearing of this application for revision on the ground that there is another remedy open to the applicant and, therefore, he is not entitled to apply in revision. what happened was this:--the applicant holds a decree against the husband of the respondent and in execution he caused certain property to be attached as the property of his judgment-debtor. the respondent preferred an objection claiming the property as her own. in that objection case an application was made to the court by the decree-holder and the objector, asking the court to refer the case to arbitration. the judgment-debtor did not join in that application and, therefore, the court did not refer the matter to arbitration but decided it itself and ordered the property to be released from attachment......
Judgment:

P.C. Banerji, J.

1. A preliminary objection has been taken to the hearing of this application for revision on the ground that there is another remedy open to the applicant and, therefore, he is not entitled to apply in revision. What happened was this:--The applicant holds a decree against the husband of the respondent and in execution he caused certain property to be attached as the property of his judgment-debtor. The respondent preferred an objection claiming the property as her own. In that objection case an application was made to the Court by the decree-holder and the objector, asking the Court to refer the case to arbitration. The Judgment-debtor did not join in that application and, therefore, the Court did not refer the matter to arbitration but decided it itself and ordered the property to be released from attachment. Upon the making of that order it was open to the applicant to institute a suit under Order XXI, ; Rule 63, for the establishment of his title' to bring the property to sale in execution of his decree; that is, for the establishment of the title of his judgment-debtor, There being this remedy open to him, it is urged that he cannot apply in revision. This objection is in my opinion well-founded. It has always been held in this Court, the earliest case on the point being that of J.J. Guise v. Jaisraj 15 A. 405 : A.W.N. (1893) 172 : 7 Ind. Dec. (N.S.) 979, that where another remedy is open to a party, the Court will not entertain an application for revision. As already pointed out, the present applicant has another remedy and, therefore, this application cannot be maintained. The application is based on the ground that the Court had no jurisdiction to decide the objection preferred by the ' respondent for the release of the attached property inasmuch as an application had been made for reference to arbitration. I think the Court was right in holding that the judgment-debtor ought to have been a party to that reference and as he was not, the matter could not be referred to arbitration. This application is not maintainable both on the ground that another remedy is open and also on the ground that it has no merits. I dismiss it with costs.


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