TMI Blog1957 (3) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. It is necessary to set out certain facts in order to understand and appreciate the dispute properly. The property attached is a theatre known as 'Nutan Theatre' situated at Rajkot. This property along with other property was owned by opponents 3 to 9 (original defendants 2 to 8) and was mortgaged by them to Hiralal Amratlal, opponent 1, and his brother Jayantilal Amratlal and in suit No. 415 of 1950 of the Rajkot Court the said mortgagees obtained a decree on the mortgage for ₹ 4,95,000 together with costs and further interest. One Nautamlal Chhotalal Tejpal then offered to purchase the Nutan Theatre from opponents 3 to 9 and the said opponents 3 to 9 passe dan agreement of sale, in his favour for ₹ 4,40,005. Nau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhanushanker, the present applicant filed a Darkhast on 3-12-55 to execute his own decree against the said defendants 2 to 8 (opponents 3 to 9) and attached the Nutan Theatre. As the consent decree in suit N. 293/54 provided that the sale deed was to be executed either in favour of Tarachand or his nominee, Tarachand nominated Nos. 1 and 2 Hiralal and Ramniklal, and on 11-2-55 on the orders of the executing Court, the Nazar of the Court executed a sale deed of the Nutan Theatre in their favour as nominees of Tarachand. The on 3-3-55 opponents Nos. 1 and 2 applied for removal of the attachment of the Nutan Theatre on the ground that they were the legal owners of the property and had received actual possession of the Theatre on 11-2-55. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession of the property every since 26-4-51, but he contents that the legal ownership in the property remained in opponents 3 to 9 and that Nautamlal's possession should be treated as on behalf of the said opponents 3 to 9. Whatever might be the merits of that contention, the real question is whether the present opponents 1 and 2, who come in as third parties for removal of attachment under Order 21, Rule 58, C. P. Code, fulfil the requirements of Order 21, Rule 59 of the Code. As the this, Mr. Shah has urged that on the consent decree being passed on 30-10-54, defendants 2 to 8 (opponents 3 to 9) remained mere trustees, for Nautamlal, of the legal title vesting i them, that by the consent decree they had agreed to sell the property to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. See Satkari Mandal v. Tirtha Narain, AIR 1915 Cal 116 , or the claimant may prove his own possession. It is only in such cases that a claim for removal of attachment can succeed. Now here it is not the opponent 1 and 2's case that the judgment-debtors opponents 3 to 9 are in possession on that their meaning opponent 1 and 2's account. On the contrary in para 4 of the application they themselves aver that the possession was with Nautamlal since 26-4-51 and that the applicants (opponents 1 and 2) came into possession of the property on 11-2-55, that is to say, subsequent to the attachment levied by the decree-holder Nalinkant. Opponents 1 and 2 do not claim to be in actual possession of the property at the date of the attachment, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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