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Bhupendra Kishore Acharjya and ors. Vs. Keshab Sankar Roy and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Case NumberCivil Rule No. 1491 of 1948
Judge
Reported inAIR1952Cal382
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 21, Rules 59 and 60
AppellantBhupendra Kishore Acharjya and ors.
RespondentKeshab Sankar Roy and anr.
Appellant AdvocateNaresh Chandra Sen Gupta and ;Bankim Chandra Roy, Advs.
Respondent AdvocateChandra Sekhar Sen and ;Rabindra Narayan Chakravarti, Advs.
Excerpt:
- .....amiya's interest in these premises on 10-10-1947, that is, some months before the date of the present attachment. no further steps as regards delivery of possession were taken by them, it is alleged, on the ground that amiya had no interest which could be taken possession of now. an application under order 21 rule 59, civ. p. c. was filed by the pre-sent petitioners objecting to the attachment. the learned munsif is apparently of opinion that in order to succeed in this case petitioners are to prove that their interest in the attached premises is a possessory interest, i.e., by virtue of such interest either they were in actual possession or in the constructive possession of the premises at the time of attachment. but in the present case they had not either kind of possession. he.....
Judgment:
ORDER

Das Gupta, J.

1. This petition is for a revision of an order passed by the Munsif at Alipur dismissing the petitioner's application under Order 21 Rule 58, Civil. P. C. It appears that one Suresh Ch. Sanyal, being the owner of premises No. 27 Hindus-than Park left a will by which on his death his widow Charusila became entitled to life-interest in it & his son Amiya to remainder after Charusila's death. Both Amiya & Charusila after Suresh's death lived in these premises. The other facts which are not in dispute may also be stated. One Sudhir Ranjan Ganguly obtained a decree & in execution thereof the petnrs purchased Amiya's interest in these premises on 10-10-1947, that is, some months before the date of the present attachment. No further steps as regards delivery of possession were taken by them, it is alleged, on the ground that Amiya had no interest which could be taken possession of now. An application under Order 21 Rule 59, Civ. P. C. was filed by the pre-sent petitioners objecting to the attachment. The learned Munsif is apparently of opinion that in order to succeed in this case petitioners are to prove that their interest in the attached premises Is a possessory interest, i.e., by virtue of such interest either they were in actual possession or in the constructive possession of the premises at the time of attachment. But in the present case they had not either kind of possession. He held that in fact and in law the property is in possession of Judgment-debtor's mother whose possession must be held to be by way of trust on behalf of the J. D. Dr. Sen Gupta for the petitioner contends that the law does not require that the petitioner must be in possession & that the learned Munsif has acted illegally in the exercise of his Jurisdiction in thinking that the possession of the mother is possession as trustee for the J. D. Amiya. Mr. Sen for the opposite party contends that unless the petitioner has proved his possession he cannot get any relief.

2. Rules 59, 60 & 61 of Order 21, Civ. P. C. deal with the investigation of the claims & objections made under Rule 58. Rule 59 requires that the claimant has to prove that he had some interest in or was possessed of the property attached. The petitioner in the present case has proved that he has purchased this interest at the sale. The relevant portion of Rule 60 is that if the Court is satisfied that for the reasons stated in the claim the property was not in the possession of the judgment-debtor or of some person in trust for him the Court shall make an order releasing the property from attachment. Rule 61 which is a counter part of Rule 60 provides that if the Court is satisfied that the property at the time it was attached was in the possession of the judgment-debtor as his own property or was in the possession of some other person in trust for him the Court shall disallow the claim.

3. The Rules nowhere state that the petitioner must himself be in possession before he can succeed in his objection. On the other hand Rule 59 clearly puts that he will either have to prove that he has some interest or in the alternative' to prove that he was in possession of the property. This is sufficient to negative Mr. Sen's contention that unless the petitioner proves possession he cannot succeed.

4. In my opinion the Munsif is wrong also in thinking that the possession of the mother is as trustee for the son. The mother has a life interest & possesses in her own right. The son has no present possession but future contingent interest. The mere fact that he lives in the house of his mother does not amount to his possession. It is dear that the property was not in the possession of the judgment-debtor or of any other person in trust for him, & the necessary result would be that the Court should have made an order releasing the property from attachment.

5. Mr. Sen however contends that even supposing that the Court below has made an erroneous order in law that is no justification for this Court to interfere with that order in revision under Section 115, Civ. P. C. specially as the party has another remedy open to him, special remedy provided in law for these cases, namely by a suit under Order 21, Rule 63, Civ. P. C.

6. In my opinion the fact that there is an alternative remedy is not a good reason always to refuse to interfere under Section 115 of the Code. I am of opinion that in the present case the Munsif in the exercise of his jurisdiction acted illegally & I think that his order should be set aside.

7. I accordingly set aside the order passed by the learned Munsif & order that the property attached at the instance of the opposite party be released from attachment.

8. The Rule is made absolute. The application-under Order 21, Rule 58, Civ. P. C. is allowed.

9. In the peculiar circumstances of this case the parties would bear their own costs.


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