Alfred Henry Lionel Leach, C.J.
1. This is a reference under Section 69 of the Presidency Small Cause Courts Act. In order to understand the question referred the facts must be stated.
2. The respondent filed S.C.S. No. 8410 of 1941 against one T.C. Krishnan, the proprietor of a hotel called the Empire Hotel, for money alleged to be due to him? The respondent obtained an order for attachment before judgment of six fans said to be on the hotel premises. When the bailiff went to the hotel, there were no fans to be found. The respondent then applied for the attachment of six electric fans 'removed and kept at No. 15, Perianna Maistri Street.' The application was granted and the bailiff proceeded to No. 15, Perianna Maistry Street, where he found two electric fans. The applicant objected to the attachment on the ground that the fans were his. He alleged that they had been sold to him by Mahdi Ali, the third defendant in the respondent's suit. The bailiff nevertheless seized the fans and this led to the applicant filing a petition asking for the release of what he claimed to be his property. He averred that the bailiff had acted unlawfully in seizing the fans. The correct procedure was, he said, to serve upon him a prohibitory order under Order 21, Rule 32 of the Madras Small Cause Court Rules, but this had not been done. Rule 32 states that in the case of (a) a debt not secured by a negotiable instrument, (b) a share in the capital of a corporation, (c) other movable property not in the possession of the judgment-debtor, except property deposited in, or in the custody of, a Court, the attachment shall be made by a written order prohibiting, in the case of ' other movable property ' the person in possession of it from giving it over to the judgment-debtor.
3. There can be no doubt that the applicant's objection was well founded. The bailiff had not the power, and could not in the circumstances be given the power, to seize the two fans. The applicant's claim petition was, however, resisted on the ground that the applicant had no title to the fans. It was said that they belonged to the judgment-debtor and that they had been removed from his premises in order to prevent their seizure under an order of attachment. This was found to be the case and the Judge who heard the applicant's petition dismissed it. Thereupon the applicant filed a regular suit under the provisions of Order 21, Rule 53 of the Small Cause Court Rules. The Judge who tried it, held that the applicant's possession of the fans was not bona fide and he dismissed the suit, whereupon the applicant filed an application for a new trial which was heard by the three Judges of the Court. The finding that the applicant's possession of the fans was in fraud of the respondent was conclusive. The applicant, however, contended that he was entitled to have his suit decreed because the bailiff had acted unlawfully in seizing the articles when he should merely have served upon him a prohibitory order. Two of the learned Judges were of the opinion that this plea was not sufficient and that it was incumbent upon the applicant to show title to the property. The learned Chief Judge of the Court took a different view. He considered that as the applicant was in physical possession of the fans he was entitled to succeed in the suit by reason of the illegal action of the bailiff. He relied on the judgment of the Patna High Court in Nagarmal Marwari v. King-Emperor I.L.R. (1931) Pat. 493. In these circumstances the learned Judges have referred the following question to this Court:
Whether in a suit by an unsuccessful claimant for setting aside the order in his claim petition it is sufficient for him in order to succeed in the suit, under Order 21, Rule 53 of the rules of the Presidency Small Clause Court to show that the attachment was by seizure of the goods from his physical possession without a prohibitory order against him under Order 21, Rule 32 of the said rules irrespective of the finding that the attached goods belonged to the judgment-debtor at the time of the attachment.
Order 21, Rule 53 of the Small Cause Court Rules under which the applicant filed his suit, reads 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.
The wording is the same as the wording of Rule 63 of Order 21 of the Civil Procedure Code. The rule clearly indicates that the plaintiff in such a suit has to establish his title to the property in dispute.
4. In Pakirayya v. Kamasastri I.L.R. (1931) Pat. 493, a Bench of this Court held that a plaintiff claimant was entitled to assert the title which he had at the time when the suit was instituted to show that the order of attachment should not have been made. It has been suggested that the judgment in this case supports the applicant; but we are unable to agree. The Bench did not hold that a plaintiff claimant had no need to show title and that all that was necessary was to establish an illegal attachment. The judgment indicates that they recognised the necessity of proving the title to possession but when this is done, the plaintiff claimant can proceed to have the attachment set aside on the ground of illegality. The question now before us was fully discussed by Venkataramana Rao, J., in Bavamma v. Papanna : AIR1936Mad971 . In that case an order for the attachment of a judgment-debtor's property had been made. His wife claimed that the property was hers. Her objection was overruled and she filed a suit under Order 21, Rule 63 of the Civil Procedure Code. It was held that she had no title to the property as she was merely a benamidar for her husband. It was nevertheless contended that she was entitled to a decree because the attachment was illegal. It transpired that the judgment-debtor had been adjudicated before the attachment and the property had devolved upon the Official Receiver who was a party to the suit. Venkataramana Rao, J., held that it was essential for the plaintiff to prove title before being allowed to take an objection to an illegality in the attachment.
5. That it is the correct view of the law is not, in our opinion, open to serious question. In the first place, we have got the wording of Order 21, Rule 63 of the Civil Procedure Code, which is followed in the Small Cause Court Rules. As we have already said, the rule itself indicates that the plaintiff must prove title. If this were not the case, a person, who was in possession of property which he had stolen, would be able to get a decree restoring the property to him should he be able to show that there was such flaw in the issue or the execution of the warrant of attachment, notwithstanding that he had stolen the goods from the judgment-debtor and they had been seized as the property of the judgment-debtor. The applicant has not stolen the goods with which this case is concerned but he was in possession of them without any title and as the result of a fraudulent scheme to defeat the respondent. In these circumstances he is not in a position to ask the Court to restore the property to him because it was seized and not merely attached by means of a prohibitory order.
6. The decision in the Patna case on which the Chief Judge relied has no application here. The question was whether a person was liable to be prosecuted under Section 186 of the Penal Code for having resisted an attaching officer.
7. For the reasons given the answer to the reference must be in the negative. The costs of the reference will be made costs in the cause.