Rangammal vs Sevugan Chetti by his guardian, Chockalingam Chetti

The District Munsif has not found who is in possession of the property. He only assumes that the petitioner''s husband was in possession. Without a finding as to who is in possession this matter cannot be disposed of. If the petitioner is in exclusive possession of the property in her own right, she is entitled to get the properties released. from attachment. If she is in possession of the property only as a joint tenant or a tenant-in-common i.e., on her own behalf and on behalf of the judgment-debtor, the decree-holder is entitled to attach and sell the judgment-debtor''s interest in the property. With reference to the above observations, the Munsif will return a finding after taking evidence on the question of possession. Mr. K.R. Subramania Sastri argues that the matter is not one for interference u/s 115 of the Civil Procedure Code. Where the District Munsif has disposed of a case without deciding a question which under the CPC he is bound to decide for a proper disposal of the case, this Court ought to interfere u/s 115 of the Civil Procedure Code. The finding should be submitted within six weeks and 7 days will be allowed for filing objections.

[In compliance with the above order of this Court, the District Munsif of Namakal submitted a finding that the attached properites were in the possession of the petitioner on the date of attachment and that such possession was not exclusive possession in her own right but only a possession which, in the circumstances can amount to one on behalf of the judgment-debtor and as a tenant in common with him].