TMI Blog1970 (1) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... ached was from the possession of the judgment-debtor. 2. The learned Civil Judge, who heard this application under Order 21, Rule 58, Civil P. C. considered the evidence and, according to him, the fact that the house was attached from the possession of the judgment-debtor was of no consequence at all and was irrelevant when it was sworn by the objector that he had a proprietary right over the attached house. According to him, the proprietary rights have to be attached and sold and, therefore, the possession was only an incidental factor. In this view, therefore, he raised the attachment of the house in the Darkhast proceedings filed by the applicant-decree-holder. This order, therefore is challenged here by the applicant. The point, therefore, that arises here for consideration is to see whether this order is illegal and improper. 3. The applicant had obtained the decree against the judgment-debtor on 19-12-1964. Thereafter the applicant started execution proceedings and attached the house belonging to the judgment-debtor on 23-2-1965. The house was attached from the possession of the Judgment-debtor. But the objector-opponent No. 1 thereafter filed an objection petition in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not in possession of the judgment-debtor for the reason stated in the objection, then the property could be released from attachment. If the Court, however, finds that the property was in possession of the judgment-debtor at the time of the attachment and if during investigation it is found that it was so in his possession not on his own account or as his own property but on account of or in trust for the objector, even then the Court has to release the property from the attachment. Therefore, what appears to be more important is the fact of possession. Under Rule 61, if the Court is satisfied that the property was at the time when it was attached in the possession of the judgment-debtor as his own property and not on account of any other person in trust for him, then the Court has to disallow the objection. Rule 61 also therefore shows that in the summary inquiry possession appears to be the criterion, though incidentally the Court may have to look into the other aspects of possession. Under Rule 63 if an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there should be as full an investigation as if a suit were instituted for the very purpose of trying the question, in other cases, it may also be the most prudent and proper course to deliver an opinion on such facts as are before the Subordinate Judge at the time, leaving the aggrieved party to bring the suit which the law allows to him. Their Lordships did not, however, desire to pronounce any opinion as to the extent of the investigation which was required under the Code. 7. The Allahabad High Court has taken a view in Bachu Lal v. Ram Din AIR1939All117 , while considering Order 21, Rule 58, that the Court dealing with objections under Rule 58 has to concentrate only on the question of possession and is not concerned with nor is it competent to decide the question of title to the property. Similarly, the Madras High Court in Ramaswami Goundan v. Karuppa Mudali AIR 1928 Mad 163 took the same view and went to the extent of even stating that any investigation of questions of title to the properties is entirely beyond the scope of the investigation directed by the Code when a claim to attached properties is preferred. 8. In Mahomad v. Pandurang, the Nagpur High Court was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed property the further issue whether his apparent possession is his real possession will not be gone into. Reliance was placed on other Calcutta High Court cases by their Lordships in this case. 10. The Madras High Court also In Saraswatamma v. Maki Naidu AIR 1940 Mad 881 was considering Order 21, Rule 58 as well as Section 47 of the Civil P. C. While considering the difference, it was observed that for the purposes of deciding a claim under Order 21, Rule 58, the Court is bound to find who was in possession at the time of the attachment, that it is not bound to find who had the title to the land for determining title; that in so far as the purpose of deciding a claim under Section 47 was concerned, it is necessary however to go into all the contentions of the parties including the contention as to title; that the scope, therefore, of the inquiry cannot be restricted merely to the question of possession at the time of the attachment and that the difference between the two inquiries is therefore not a difference in procedure so much as a difference in the scope of the inquiry. With respect, I agree with this view. 11. Therefore, the learned Civil Judge's observation while ..... X X X X Extracts X X X X X X X X Extracts X X X X
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