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Choudhri Vs. Ram Saran Das and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 8 of 1952
Judge
Reported inAIR1953HP49
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 21, Rules 58 and 61
AppellantChoudhri
RespondentRam Saran Das and anr.
Appellant Advocate Indar Singh Karwal, Adv.
Respondent Advocate R.N. Malhotra, Adv. and Party in person
DispositionRevision dismissed
Cases ReferredProtiva v. Reliance BankLtd.
Excerpt:
- .....would therefore be no ground for interference by this court in revision. there is nothing in the rule in question debarring the court deciding an objection under order 21, rule 58, civil p. c., from going into the question of title, provided it does so only incidentally for determining the main question of possession. indeed, the true nature of possession contemplated by rule 61 may not in certain cases be capable of determination without going into the question of title also. nor would any party be prejudiced thereby for the question of title being only incidentally, arid not directly and substantially, in issue, any decision on that question would not operate as 'res judicata' in any future proceedings between the parties. i find support for this view in -- 'sm. chunni debi v. sm......
Judgment:
ORDER

Chowdhry, J.C.

(1) This is an application by one Choudhri to revise the order of the Senior Subordinate Judge Mahasu, dated 30-11-1951, dismissing his objection under Order 21, Rule 58, Civil P. C., against the attachment of certain land in execution of the decree of Ram Saran against Dharam Das.

(2) The attachment was made on 28-10-1950 and the objector laid claim to the property under a sale-deed dated 25-1-1950. The Subordinate Judge dismissed the objection on the findings that the objector was not in possession of the attached property, and that the sale-deed in question passed no title to him. He also overruled the objector's contention that the property had not been validly attached.

(3) It was strenuously contended by the learned counsel for the objector-petitioner that this is a fit case for interference by this Court, because the learned Subordinate Judge has, acted with material irregularity in exercise of his jurisdiction in going into the question of title. A number of rulings were cited by him in support of his contention, but I do not deem it necessary to consider them. The petitioner's claim has been disallowed under Rule 61. The relevant portion of that rule applicable in the present case required a finding that the property was at the time of attachment in the possession of the judgment-debtor as his own property and not on account of any other person. It follows, therefore, that it would not have sufficed for the Court merely to hold that it was in possession of the judgment-debtor, but it was further necessary for it to hold that the judgment-debtor was in possession of the property as his own and not on account of any other person. While, therefore possession is no doubt the main question for determination, the question of title may have to be gone into in order to ascertain that the nature of the possession was such as contemplated by the rule, i.e., possession of the judgment-debtor as his own property and not on account of any other person. So long therefore as the Court deciding the objection has complied with the above provision, even though in doing so he may have arrived at erroneous findings, it cannot be said to have acted with material irregularity in the exercise of its jurisdiction, and there would therefore be no ground for interference by this Court in revision. There is nothing in the rule in question debarring the Court deciding an objection under Order 21, Rule 58, Civil P. C., from going into the question of title, provided it does so only incidentally for determining the main question of possession. Indeed, the true nature of possession contemplated by Rule 61 may not in certain cases be capable of determination without going into the question of title also. Nor would any party be prejudiced thereby for the question of title being only incidentally, arid not directly and substantially, in issue, any decision on that question would not operate as 'res judicata' in any future proceedings between the parties. I find support for this view in -- 'Sm. Chunni Debi v. Sm. Annapurna Dai', AIR 1944 Pat 242.

(4) So far as the present case is concerned, the learned Subordinate Judge has not disposed of the objection merely on a finding of title, aswas the case in -- 'Protiva v. Reliance BankLtd., 52 Cal WN 56, cited by the learned counsel for the petitioner, or in -- 'Bachu Lal v.Ram Din', AIR 1939 All 117. He has come toa definite finding that the possession of theattached property was still with the judgment-debtor despite the sale-deed. As to whetherthat finding, or the finding that there was noillegality or irregularity in the attachment, waserroneous, that would be no ground for interference in revision for the Court below, had thejurisdiction to arrive at even erroneous findings on those questions. The application inrevision is rejected with costs.


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