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Punnen Abraham Vs. Varkey Varkey - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 741 of 1962
Judge
Reported inAIR1965Ker145
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 58 and 60
AppellantPunnen Abraham
RespondentVarkey Varkey
Appellant Advocate Manual T. Paikaday and; L.I. Thattil, Advs.
Respondent Advocate V. Sankara Menon, Adv.
Cases ReferredBachu Lal v. Ram Din
Excerpt:
- - i am satisfied that on the date of the attachment the petitioner had some interest in the properties and possession of items 1 to 7.'2. the main point raised on behalf of the petitioner is that the court below failed to decide what it was bound to do......this civil revision petition has beenpreferred by the decree-holder against an orderallowing a claim to properties attached in executionsof the decree. the learned munsiff held:'i am satisfied that on the date of the attachment the petitioner had some interest in the properties and possession of items 1 to 7.'2. the main point raised on behalf of the petitioner is that the court below failed to decide what it was bound to do. the argument is that when the court finds that the claimant is in possession it has also to decide whether the possession, of such person is in trust for or on behalf of the judgment-debtor. this position is supported by the decision of the allahabad high court in bachu lal v. ram din, air 1939 all 117. it was urged that the absence of such a finding vitiates.....
Judgment:
ORDER

T.K. Joseph, J.

1. This Civil Revision Petition has beenpreferred by the decree-holder against an orderallowing a claim to properties attached in executionsof the decree. The learned Munsiff held:

'I am satisfied that on the date of the attachment the petitioner had some interest in the properties and possession of items 1 to 7.'

2. The main point raised on behalf of the petitioner is that the court below failed to decide what it was bound to do. The argument is that when the court finds that the claimant is in possession it has also to decide whether the possession, of such person is in trust for or on behalf of the Judgment-debtor. This position Is supported by the decision of the Allahabad High Court in Bachu Lal v. Ram Din, AIR 1939 All 117. It was urged that the absence of such a finding vitiates the order in view of the circumstances relied on such as that, all or the major part of the judgment-debtor's properties including his residential house have been transferred for an inadequate price by the execution of a sale deed In a distant Sub-Registrar's Office, etc. I am not expressing any opinion on the evidence but I must observe that the finding on the question of possession is defective. I would therefore allow the Civil Revision Petition, set aside the order and remand the claim petition for fresh decision according to law. No costs.


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