1. This revision petition is directed against an order of the learned Subordinate Judge, Alipore releasing certain property from attachment in a Claim Case.
2. Hindusthan Commercial Bank Ltd., the petitioner before us is the owner of a money decree against opposite party 2, Makhan Lal Ganguly passed in Suit No. 1464 of 1049 by this Court in its original jurisdiction. The Bank in execution of this decree attached another decree which was passed in favour of Makhan Lal Ganguly against the Chinese Tannery Owners' Association and others in Title Suit No. 142 of 1953 (Originally numbered as Title Suit No. 75 of 1950) of the Court of the 1st Subordinate Judge, Alipore. Thereupon, opposite party 1, Lakshmi Narayan Saha filed a petition under Rule 58 of Order 21, Civil P. C. for the release of the attachment. Lakshmi Narayan Saha claims title to the attached decree by virtue of a deed of assignment dated 30-10-1951. This deed was executed by Makhan Lal Ganguly in favour of Lakshmi Narayan Saha during the pendency of Title Suit No. 75 of 1950 subsequently numbered as Title Suit No. 142 of 1953. By this deed Makhan Lal Ganguly assigned his claim in the above suit. The deed refers to the several bills made out by Makhan Lal Ganguly on the Chinese Tannery Owners' Association in respect of the claim in the suit and the operative part of the deed reads thus :
'The Assignor doth by these presents assign, transfer and convey all his right, title and interest and claim into or against the said bill or bills payable by the Chinese Tannery Owners' Association'.
3. On a careful reading of the Deed of Assignment we are of opinion that the decree to be passed in the pending Title Suit No. 75 of 1950 (subsequently numbered as Title Suit No. 142 of 1953) was not assigned by this deed.
4. In spite of the Deed of Assignment Lakshmi Narayan Saha did not get himself substituted as plaintiff in place of Makhan Lal Ganguly and allowed Makhan Lal Ganguly to obtain the attached decree in his favour.
5. The effect of assignment of a debt by a creditor pending a suit for recovery of the debt and the consequences of allowing the assignee to proceed with the suit and to obtain a decree are discussed in Jugalkishore Saraf v. Raw Cotton Co. Ltd., 1955 SCR 1369: ((S) AIR 1955 SC 376) (A). The Supreme Court unanimously held that the assignee of the debt was entitled to execute the decree eventually passed in favour of the assignor, even though the assignment did not convey the future decree. The Supreme Court was also unanimous in the opinion that there was no assignment of the decree in writing. As to whether there was assignment by-operation of law there was diversity of opinion. Das J. was of the opinion that there was no such assignment. Bhagwati J. was of the opinion that the assignee of the debt could claim to he the transferee of the decree and could apply for the execution of the decree under Order 21, Rule 16, Civil P. C. Imam J. reserved his opinion on the question. Both Das and Imam JJ. were of the opinion that the assignee of the debt was entitled to apply for execution of the decree under Section 146, Civil P. C. as persons claiming under the decree-holder. I regard the observations at pages 1404 to 1405 (of SCR): (at pp. 394-395 of AIR) as the ratio of the majority decision. Das J. observed thus :
'The transferors no longer had any right title or interest in the subject matter of the suit. ***The transferors, therefore, proceeded with the suit although they had no longer any interest in the debt which was the subject matter of the suit and which had been transferred by them to the respondent Company, In the premises, in the eye of the law, the position of the transferors, vis-a-vis the respondent company, was nothing more than that of benamdars for the respondent Company and when the decree was passed for the recovery of that debt it was the respondent Company who were the real owners of the decree. As between the respondent Company and the transferors the former may well claim a declaration of their title. Here there is no question of transfer of the decree by the transferors to the respondent company by assignment of the decree in writing or by operation of law and the respondent Company cannot apply for execution of the decree under Order 21, Rule 16. ***When the respondent company became the owner of the decree immediately on its passing they must, in relation to the decree, be also regarded as persons claiming under the transferors, *** In my opinion, the respondent Company arc entitled under Section 146 to make the' application for execution which the original decree-holders could do.''
6. In the light of these observations Mr. Gupta contends that Lakshmi Narayan Saha is now the real holder of the attached decree and that Makhan Lal Ganguly has no subsisting interest therein.
7. Clearly Makhan Lal Ganguly is the benamdar for Lakshmi Narayan Saha of the decree which has been passed in relation to such claim as has been lawfully assigned to Lakshmi Narayan Saha by Makhan Lal Ganguly.
8. The lower Court has recorded the following finding :
'In view of the deed of assignment dated 30-12-51 the correct position would be that Makhan Lal Ganguly is holding the decree not on his own account but on account of the claimant. The contention of the claimant must, therefore, be upheld.''
9. Mr. A. K. Sen contends :
1. The Court cannot inquire into the question of benami in these summary proceedings;
2. The question whether Makhan Lal Ganguly is entitled to the decree is concluded by the adjudication in Title Suit No. 142 of 1953;
3. Part of the claim of Makhan was for damages for breach of contract and was a mere right to sue and assignment of a mere right to sue being invalid under Section 6(e), Transfer of Property Act, Lakshmi Narayan Saha is not entitled to that part of the decree which awarded such damages to Makhan Lal Ganguly;
4. The claim for interest and costs has not been assigned by the deed and, therefore, Lakshmi Narayan Saha is not entitled to that part of the decree which awards interests and costs to Makhan Lal Ganguly.
10. Mr. Gupta disputes these contentions.
11. Rules 59 to 60 of Order 21, Civil P. C. provide for a summary investigation of the claim preferred under Rule 58. Barring questions of mortgage and charge over the property the inquiry is as to the possession of the property attached. The issues are :
(a) Was the property when attached in possession of the judgment-debtor?
(b) If so, was such possession wholly or partly on his own account or on account of or in trust for some other person?
(c) If the property was in possession of a third, party, was such possession in trust for the judgment-debtor? 'The question of title is required to be gone into only so far as it may be necessary to determine whether the person in possession holds such possession as agent or as trustee for another'
percuriam Mohunt Bhagwan Ramanuj Das v. Khetter Moni Dassi, 1 Cal WN 617 at p. 622 (B).
12. If it be found that the judgment-debtor is in possession of the attached property the further issue whetiier his apparent possession is his real possession will not be gone into. The Court will not go into the question of benami. Reliance Development and Engineering Ltd. v. Bhabani Ch. Banerjee, : AIR1950Cal342 , Protiva Sundari Chaudhury v. The Reliance Bank Ltd., 52 Cal WN 56 (D), Butto Kristo Paul & Co. v. Harendra Nath : AIR1937Cal639 , Monmohini Dassee v. Radha Kristo Das, 29 Cal 543 (F).
13. Mr. Gupta contends that the decree is not capable of being possessed and that where a decree is attached the only possible inquiry under Rules 59 to 60 of Order 21 is an inquiry into title. We are unable to accept this contention,
14. Rules 59 to 62 provide for an inquiry into possession of every species of property which may be attached and in respect of which a claim is preferred under Rule 58.
15. A Full Bench of the Madras High Court in Chidambara Pattar v. Ramasamy Pattar, 27 Mad 67 (G), observed as follows :
'We are therefore of opinion that the words 'possess' and 'possession' in claim sections of the Code include constructive possession, or possession in law, of debts and other intangible property.''
16. 'The possession of a thing is the de facto condition of its continuous and secure enjoyment.' Salmond's Jurisprudence, Edn. 10, 309. Possession varies according to the nature of the property and need not necessarily be physical or tangible possession.
17. In the absence of evidence to the, contrary there is a presumption that possession follows title.
18. Clearly Makhan Lal Ganguly has apparent title to the decree. It is not shown that any person other than Makhan is in possession or enjoyment of the decree. The apparent possession therefore follows the apparent title. In these summary proceedings the Court cannot inquire into the question if Makhan is a mere benamdar and that the possession of Makhan is really the possession of Lakshmi Narayan.
19. If there is apparent possession tacked on the apparent title the Court must give effect to it in a summary proceeding. The lower Court did not inquire into the question of possession. Without deciding that question the lower Court illegally released the attachment on the finding that Lakshmi Narayan Saha is entitled to the decree. The order is illegal and must be set aside.
20. In these proceedings the Court cannot decide the question of benami and the complicated question of ultimate trust raised in the argument. These questions will be gone into in appropriate proceedings.
21. We pass the following order :
22. We make the Rule absolute and set aside the order of the learned Judge and dismiss the claim petition of Lakshmi Narayan Saha. We direct that the costs of the appeal and the costs of the proceedings in the Court below will abide the result of the suit which may be instituted by Lakshmi Narayan Saha under Order 21, Rule 63, Civil P. C. If such a suit is not filed within the time prescribed Hindusthan Commercial Bank Ltd., the petitioner, will be entitled to the costs here and in the Court below from the opposite party Lakshmi Narayan Saha.
Guha Ray, J.
23. I agree.