Appaswami Chettiar vs N. Balakrishna Pillai and Others

Madhavan Nair, J.—I am asked in this Civil Revision Petition to set aside an order by which the learned City Civil Judge has disallowed a

claim under Order 21, Rule 61 of the Civil Procedure Code. The decree-holder, in execution of the decree in Suit No. 6974 of 1922 on the file of

the Court of Small Causes, Madras, attached house and ground No. 250 in Swami Pandaram Street, Chintadripet, Madras, along with other

properties, as properties belonging to the judgment-debtor. The claimant, who is the petitioner before me, filed objections to the attachment under

Order 21, Rule 58 on the ground that he was in possession of the above house and ground, that it had been duly conveyed to him by its owners

and that he had been in, possession of it in his own right ever since the sale. The learned City Civil Court Judge, holding that "" he was not satisfied

with the bona fides of his claim or of the sale in his favour,"" dismissed his petition.

I think the order of the learned Judge is wrong and must be set aside. In cases coming under Order 21, Rule 58, it has been held that the Court

is bound to decide the question of possession and that, if a case is disposed of without deciding such question, the High Court ought to interfere

under 8.115 of the Civil Procedure Code. [See Rangammal v. Sevugan Chetti (1914) 28 MLJ 327. In this case, it is clear from the order that the

learned Judge did not pay any attention to the question as regards the actual possession of the house. In this connection, the following observations

of the learned Judges of the Calcutta High Court in Satkari Mandal v. Thirtha Narain Bhattacharjee (1913) 24 IC 62 may be usefully referred to :

The Court cannot found its decision on the question of the validity of the claim or the determination of the title to the property attached.... The

Court below has thus refused to determine the one question it was competent to decide, namely, the question of possession, and has, on the other

hand, determined the question it was not competent to investigate, namely, the question of title. "" As the learned Judge has failed to consider the

question of possession which he is bound to decide under the Code, I would set aside the order of the learned Judge and direct him to restore the

petition to his file and dispose of it according to law in the light of the above observations. The petitioner will get his costs here and in the Court

below.