Mangu Ram Marwari vs Homeshwar Singh

Macpherson, J.—This is an application in revision against the order of the Subordinate Judge of Bhagalpur on an application by the petitioner under Order 21, Rule 58, Civil P.C., dismissing a claim preferred by the petitioner to the attachment of a handnote, Ex. A, in an execution case. Ex. A was executed in September 1925 by Nag Narain Singh in favour of the judgment-debtor Bansidhar. In May 1927 the latter is alleged by the petitioner to have borrowed Rs. 4,800, from him and in November to have in liquidation of it sold him by Ex. 1 his interest in Ex. A. The petitioner sued in 1928 to enforce Ex. A which he filed. Thereafter the opposite party (decree holder) attached Ex. 1, presumably under Order 21, Rule 46, whereupon petitioner preferred the claim on the basis of Ex. I that the interest in Ex. A is his and cannot be attached.

The learned Subordinate Judge found that Ex. A was really filed in the suit of 1928 not by the petitioner but by the judgment-debtor in whom the property in Ex. A still remains. Inter alia before the suit and after the written statement had been filed the judgment-debtor''s son (who it may be mentioned is present in this Court on both days of hearing) had made approaches first for settlement and then for compromise and in the latter had stated that he would make over the handnote towards payment of part of the decretal amount.

There can be no doubt that the findings of the learned Subordinate Judge are correct. It has, however, been urged by Mr. S.M Mullick that the Court below acted without jurisdiction in entering upon the question whether the sale deed, Ex. 1, was farzi.

Now the correct principle to apply to decisions tinder Order 21, Rule 61 is that this Court should not interfere in revision as the petitioner has open to him the remedy given by Rule 83. No doubt exceptions to this rule have occurred and the decisions in Ram Kishun Singh and Others Vs. Damodar Proshad and Others, and Ganesh Lal Sarawagi Vs. Mahabir Sahu and Another, are referred to in this regard.

In the latter case the learned Judge acknowledges the force of the contention that it was necessary for the Court below to go into the question whether the sale deed was genuine or collusive since otherwise a proper decision as to whether the claimant was in possession of the property on his own account or in trust for the judgment-debtor was not-possible; but he preferred to follow the decision in Ram Kishun Singh and Others Vs. Damodar Proshad and Others, .

That, however, was in essence a decision that a person who is in joint possession of the property sold'' in execution, holds it on his own account'' within the meaning of Order 21, Rule 101 and is entitled to apply under Order 21, Rule 100. In my opinion the true criterion is as laid down by their Lordships of the Privy Council in Sardhari Lal v. Ambica Prasad [1888] 15 Cal. 521, that the extent to which the investigation required by Rule 58 should go depends on the circumstances of the case. A Court does not necessarily act without jurisdiction in considering whether the claimant is merely a farzidar of the judgment-debtor. To my mind the point was within the discretion of the Subordinate Judge and his investigation and order are not without jurisdiction. Further the finding hero amounts to this: that Ex. A is actually in possession of the judgment-debtor. In any event this is decidedly not a case in which this Court should interfere in revision in favour of the petitioner who has another remedy.

The rule is discharged with costs: pleader''s fee three gold mohurs.