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Appaswami Chettiar Vs. N. Balakrishna Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1925)48MLJ603
AppellantAppaswami Chettiar
RespondentN. Balakrishna Pillai and ors.
Cases ReferredSatkari Mandal v. Thirtha Narain Bhattacharjee
Excerpt:
- - the learned city civil court judge, holding that 'he was not satisfied with the bona fides of his claim or of the sale in his favour,'dismissed his petition. 'as the learned judge has failed to consider the question of possession which he is bound to decide under the code, i would set aside the order of the learned judge and direct him to restore the petition to his file and dispose of it according to law in the light of the above observations......j.1. i am asked in this civil revision petition to set aside an order by which the learned city civil judge has disallowed a claim under order 21, rule 61 of the civil procedure code. the decree-holder, in execution of the decree in suit no. 6974 of 1922 on the file of the court of small causes, madras, attached house and ground no. 250 in swami pandaram street, chintadripet, madras, along with other properties, as properties belonging to the judgment-debtor. the claimant, who is the petitioner before me, filed objections to the attachment under order 21, rule 58 on the ground that he was in possession of the above house and ground, that it had been duly conveyed to him by its owners and that he had been in, possession of it in his own right ever since the sale. the learned city civil.....
Judgment:

Madhavan Nair, J.

1. I am asked in this Civil Revision Petition to set aside an order by which the learned City Civil Judge has disallowed a claim under Order 21, Rule 61 of the Civil Procedure Code. The decree-holder, in execution of the decree in Suit No. 6974 of 1922 on the file of the Court of Small Causes, Madras, attached house and ground No. 250 in Swami Pandaram Street, Chintadripet, Madras, along with other properties, as properties belonging to the judgment-debtor. The claimant, who is the petitioner before me, filed objections to the attachment under Order 21, Rule 58 on the ground that he was in possession of the above house and ground, that it had been duly conveyed to him by its owners and that he had been in, possession of it in his own right ever since the sale. The learned City Civil Court Judge, holding that ' he was not satisfied with the bona fides of his claim or of the sale in his favour,' dismissed his petition.

2. I think the order of the learned Judge is wrong and must be set aside. In cases coming under Order 21, Rule 58, it has been held that the Court is bound to decide the question of possession and that, if a case is disposed of without deciding such question, the High Court ought to interfere under 8.115 of the Civil Procedure Code. [See Rangammal v. Sevugan Chetti (1914) 28 MLJ 327. In this case, it is clear from the order that the learned Judge did not pay any attention to the question as regards the actual possession of the house. In this connection, the following observations of the learned Judges of the Calcutta High Court in Satkari Mandal v. Thirtha Narain Bhattacharjee (1913) 24 IC 62 may be usefully referred to : ' The Court cannot found its decision on the question of the validity of the claim or the determination of the title to the property attached.... The Court below has thus refused to determine the one question it was competent to decide, namely, the question of possession, and has, on the other hand, determined the question it was not competent to investigate, namely, the question of title. ' As the learned Judge has failed to consider the question of possession which he is bound to decide under the Code, I would set aside the order of the learned Judge and direct him to restore the petition to his file and dispose of it according to law in the light of the above observations. The petitioner will get his costs here and in the Court below.


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