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Dayashankar Nanalal Vs. Harishankar Ganapatram Thaker and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 571 of 1960
Judge
Reported inAIR1962Guj319; (1963)GLR47
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 58, 59, 60 and 63
AppellantDayashankar Nanalal
RespondentHarishankar Ganapatram Thaker and anr.
Appellant Advocate I.C. Bhatt, Adv.
Respondent Advocate S.N. Patel, Adv.
DispositionApplication dismissed
Cases ReferredBachu Lal v. Ram Din
Excerpt:
civil - execution proceeding - order 21 rules 58, 59, 60 and 63 of code of civil procedure, 1908 - whether executing court while investing claim or objection had right to go into questions of title of attached property - court must be satisfied that attached property should not be in possession of judgment-debtor - claimant objecting to attachment should show that at date of attachment claimant had some interest in property - elaborate inquiry into question not required. - - 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..........into the questions of title while investigating a claim or objection made under order 21, rule 58, civil procedure code. the mode of such investigation is explained in order 21, rule 58, order 21, rule 59 and order 21, rule 60, civil procedure code. order 21, rule 58 relates to claims or objections on the ground that the property attached was not liable to such attachment. the question whether thr property was or was not liable to such attachment is therefore to be investigated. order 21, rule 59, civil procedure code provides that the claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached. the executing court has therefore to see whether the claimant or objector has adduced evidence to show.....
Judgment:

V.B. Raju, J.

1. In this Civil Revision application, it 13 contended that the executing Court had no right to go into the questions of title while investigating a claim or objection made under Order 21, Rule 58, Civil Procedure Code. The mode of such investigation is explained in Order 21, Rule 58, Order 21, Rule 59 and Order 21, Rule 60, Civil Procedure Code. Order 21, Rule 58 relates to claims or objections on the ground that the property attached was not liable to such attachment. The question whether thr property was or was not liable to such attachment is therefore to be investigated. Order 21, Rule 59, Civil Procedure Code provides that the claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached. The executing Court has therefore to see whether the claimant or objector has adduced evidence to show that at the date of the attachment he had some interest or was possessed of the property attached. Order 21, Rule 60, Civil Procedure Code, reads as follows:

'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 as it thinks fit, from attachment.'

According to this provision, the Court must be satisfied that for the reason stated in the claims or objection such property was not, when attached, in the possession of the judgment-debtor, or 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 possesion, 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, and then the Court shall make an order releasing the property, wholly or to such extent as it thinks fit from attachment. Order 21 Rule 63, Civil Procedure Code provides that 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 hs claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive. According to these provisions therefore, the claimant or objector can contend that he has a right to the property in dispute and he may establish that right if an order is made against him in the execution proceedings. It is clear from these provisions that the scope of investigation of a claim or objection under Order 21 Rule 58, Civil Procedure Code is that which is prescribed in Order 21, Rules 58, 59, 60 arid 63, Civil Procedure Code. Even when deciding the point mentioned in Order 21 Rule' 60, for instance, the question whether the possession of the judgment-debtor was possession not on his own account or as his own property but on account of or in trust for some other person, the question of title may some times have to be gone into. Ownership is an interest in property and the words 'some interst' are used in Order 21, Rule 59 Civil Procedure Code, according to which the claimant roust adduce evidence to show that at the date of the attachment ho had some interest in, or was possessed of, the property attached. If he was the owner of the property on the date of the attachment, that would of course mean that he had some interest in the property. In Sardhari Lal v. Ambika Pershad, ILR 15 Cal 521 (PC), their Lordsrips of the Privy Council have observed at p. 526 as follows :-

'But besides that, the Code does not prescribe the extent to which the investigation should go; and though in some cases it may be very proper that there should be as full an investigation as if a suit were instituted for the very purpose of trying the question, in other cases it may also be the most prudent and proper course to deliver an opinion on such facts as are before the subordinate Judge at the time, leaving the aggrieved party to bring the suit which the law allows to him. However, that may be their Lord-ships do not desire- to pronounce any opinion as to the extent of the investigation which is required under the Code'.

In Najimunnessa Bibi v. Nacharuddin Satdar, : AIR1924Cal744 , it is observed as follows at p. 556:-

'Now, rules 58 to 62 of Order XXI are directed to give a means by which execution proceedings may be made effective, and not too closely entangled with disputes between third parties and the debtor. Provision is made for investigation of claims in a limited fashion. The scope of the enquiry being confined the. investigation will not always . be at all elaborate, and the privy Council in Sardhari Lal's case, ILR 15 Cal 521 at p. 526 (PC) have pointed out that some times that investigation may well be very slight indeed. Rules 60 and 61 provide them for a summary investigation into possession as distinct from a thorough. trial of ultimate right. It is impossible to separate altogether the question, of possession and of title. Thus, if the judgment-debtor was in possession, he may have been in possession as agent or trustee for another, and this, has to be enquired into. To that extent, the title may be part of the enquiry in a claim case, but no ultimate questions of trust are intended to be thrashed out.' The. learned counsel for the applicant, however, relies on Nalinikant Bhanushanker v. Hiralal, : AIR1959Bom87 . This decision does not take a view contrary to that taken by me. It has been observed in this case as follows:-

'The scope of an inquiry in a claim filed adder Order XXI, Rule 58, of the Civil Procedure Code, 1908, is to be restricted to a summary investigation into the question of possession as distinct from a thorough trial of the ultimate right and, therefore, an elaborate inquiry into the question of title cannot be gone into in such an application. The claimant objecting to the attachment has to show that at the date of the attachment he had some interest in the property or was possessed thereof. It is only in such cases that a claim for removal of attachment can succeed. The words 'some interest' occurring in Order XXI, Rule 59 of the Code mean such interest as would make the possession of the 'judgment-debtor not on his own account but on account of 6r id trust for the claimant.' It is, therefore, clear that a claimant objecting to the attachment should show .that at the date of the attachment he had some interest in the property. What is emphasized is that an elaborate inquiry into the question of title may not be necessary.

2. The learned counsel for the applicant also relies on Ambalal v. Punjabhai, AIR 1943 Bom 129 but in this case, the question related to an order of costs. There may be some observations in this case regarding the scope of Order 21, Rule 58, but the revision application that was decided was against an order of the lower Court that the petitioner should refund the costs which he had recovered from the tenant in pursuance of an order passed in certain claim proceedings. Under O. 21, Rule 58, Civil Procedure Code. The learned counsel for the applicant also relies on Jamal Bros, and Co. v. Chip Moh and Co., AIR 1927 Rang 287. This decision will. not apply to the facts of the instant case, because in the instant case there is a finding that the judgment-debtor was not in possession but that the claimant was in possession in his own right. The learned counsel for the applicant also relied on Bachu Lal v. Ram Din, : AIR1939All117 , where it is observed as under:-

'Rules 58 and 60 when read together make it 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 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 oa 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.'

It is not necessary to refer to this decision because there is no reference in it to Order 21, Rule 59, Civil Procedure Code. The learned counsel concedes that there is no reference to Order 21, Rule 59, Civil Procedure Code in this case. In fact, the Court below came to the finding that the applicant was possessed of the property in his own right and not on behalf of the judgment-debtor. The finding is, therefore, that the judgment-debtor was not in possession of the property in his own right. In view of this finding, the revision application is clearly not maintainable. Moreover, proceedings under Order 21, Rule 58, Civil Procedure Code, are of a summary nature and the parties have another remedy under Order 21, Role 63 Civil Procedure Code. On this ground also the Civil Revision is liable to be dismissed.

3. The revision application is, therefore, dismissed. There will be no order as to costs.


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