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Sabella Appanna Vs. Mallidi Appanna and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1915Mad1463; 25Ind.Cas.700
AppellantSabella Appanna
RespondentMallidi Appanna and ors.
Cases ReferredKedarnath Chatterji v. Rakihal Das Chatterji
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 63 - execution--attachment--claim petition--judgment-debtor party to claim--claim allowed judgment-debtor, whether competent to sue for declaration of his title to property attached and for cancellation of attachment. - .....v. ambika pershad 15 c. 521 : 15 i.a. 123 : 5 sar. p.c.j. 172 as reconcilable with the judgment-debtor's right to sue. authority in this presidency being in favour of that right, it is unnecessary to deal at length with kedarnath chatterji v. rakihal das chatterji 15 c. 674 : 13 ind. jur. 104 on which the appellant relies. we find against his contention. as it is open to the judgment-debtor to bring a suit of the nature contemplated in order xxi, rule 63, of the code of civil procedure, it is not necessary for him to include a prayer for possession in his plaint, and it is unnecessary for us to consider whether he is in possession or not.3. the remainder of the argument has been directed towards showing that the judgment is, as regards particular points, not based on or against the.....
Judgment:

1. Plaintiff, a judgment-debtor, sued for a declaration of his right to certain lands attached by the 2nd defendant and for the setting aside of the summary order passed on the latter's claim petition.

2. It is contended, firstly, that only a decree-holder can sue for relief of this nature. It has not, however, been explained how a judgment-debtor is not as directly interested in making a particular portion of his property available for the payment of his debt as the decree-holder is in securing payment from that portion. And, as regards authority, Guruva v. Subbarayudu 13 Ma. 366 and Muthusamy Mudaly v. Ayyhlu Baihadu 13 M.L.J. 367 are against the appellant's contention. The latter case refers to Sardhari Lal v. Ambika Pershad 15 C. 521 : 15 I.A. 123 : 5 Sar. P.C.J. 172 as reconcilable with the judgment-debtor's right to sue. Authority in this Presidency being in favour of that right, it is unnecessary to deal at length with Kedarnath Chatterji v. Rakihal Das Chatterji 15 C. 674 : 13 Ind. Jur. 104 on which the appellant relies. We find against his contention. As it is open to the judgment-debtor to bring a suit of the nature contemplated in Order XXI, Rule 63, of the Code of Civil Procedure, it is not necessary for him to include a prayer for possession in his plaint, and it is unnecessary for us to consider whether he is in possession or not.

3. The remainder of the argument has been directed towards showing that the judgment is, as regards particular points, not based on or against the evidence. We cannot call the discussion of the evidence in the judgment satisfactory. But we do not think that there was an absence of evidence or disregard of evidence on the points in question which would justify our interference in second appeal.

4. The appeal, therefore, fails and is dismissed with costs.


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