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Tamluk Loan Office Co. Ltd. Vs. Kedar Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 489 of 1951
Judge
Reported inAIR1952Cal768
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 21, Rule 15 - Order 38, Rule 8
AppellantTamluk Loan Office Co. Ltd.
RespondentKedar Nath and ors.
Appellant AdvocateManindra Krishna Ghose, Adv.
Respondent AdvocateBasanta Kumar Panda, Adv.
Excerpt:
- .....against an order of the learned subordinate judge, 2nd court, midnapore allowing a claim filed by opposite parties nos. 1 to 6 under the provisions of order 38, rule 9, civil p. c.2. the plaintiff instituted a suit against opposite party no. 6 for recovery of certain sums of money due on two promissory notes. the plaintiff thereafter made an application for attachment before judgment of certain bills which stood in the name of opposite parties nos. 1 and 6 attachment being prayed for in respect of the half share of opposite party no. 6. thereupon opposite parties nos. 1 to 5 appeared and preferred a claim. the allegation was that the bills were due to a partnership -firm consisting of opposite parties nos. 1 to 5 as partners. opposite party no. 6 was merely a working partner and was.....
Judgment:

G.N. Das, J.

1. This rule was obtained by the plaintiff against an order of the learned Subordinate Judge, 2nd Court, Midnapore allowing a claim filed by opposite parties Nos. 1 to 6 under the provisions of Order 38, Rule 9, Civil P. C.

2. The plaintiff instituted a suit against opposite party No. 6 for recovery of certain sums of money due on two promissory notes. The plaintiff thereafter made an application for attachment before judgment of certain bills which stood in the name of opposite parties Nos. 1 and 6 attachment being prayed for in respect of the half share of opposite party No. 6. Thereupon opposite parties Nos. 1 to 5 appeared and preferred a claim. The allegation was that the bills were due to a partnership -firm consisting of opposite parties Nos. 1 to 5 as partners. Opposite party No. 6 was merely a working partner and was entitled only to 2 annas share of the profits.

3. The Subordinate Judge was of opinion that the money due on the bills should be regarded as held by the Government on account of the partners, namely, opposite parties Nos. 1 to 5. In this view he allowed the claim.

4. Mr. Ghose appearing for the plaintiff petitioner has contended that the learned Subordinate Judge was not entitled to go into the question of title relating to the moneys payable under the bills and that as prima facie the bills stood in the names of opposite parties Nos. 1 and 6 the claim should have been disallowed.

5. On behalf of the contesting opposite parties Nos. 1 to 5 it was contended that the question of title could be gone into inasmuch as there was a registered partnership deed and the question before the Court was simply as regards the effect of the partnership deed. It was also contended that this Court had no jurisdiction to interfere into the matter.

6. Under the provisions of Order 21, Rule 60, Civil P. C., the Court in deciding a claim is required to consider whether the possession of the property was held by the judgment-debtor or by some person in trust for him. In the present case no question of trust arises, the bills stood in the names of opposite parties Nos. 1 and 6 and prima facie, therefore, the sums due under the bills would be payable to opposite parties Nos. 1 and 6. The question of title to the bills cannot be investigated on a claim filed under Order 38, Rule 8 read with Order 21, Rule 15, Civil P. C. In this view the Subordinate Judge should not have gone into the question of title to the money which may be ultimately payable under the bills in question.

7. As regards the jurisdiction of this Court it has been held in many cases in this Court that if a Court in deciding a claim goes beyond its jurisdiction and bases its decision on questions of title, this Court can interfere in revision.

8. The result, therefore, is that the order complained of should be set dside and this Rule made absolute with costs. The ad interim attachment will continue.

9. Let the counter affidavit filed in Court on 21-6-1951 be kept on the record.

Harries, C.J.

10. I agree.


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