Biswanath Patra vs Lingarai Patra

Das, J.—This application must succeed. The opposite party No. 3 executed usufructuary mortgage so far back as the 17th August, 1916, in favour of the petitioner. On the 19th February, 1917, the opposite-party No. 3 borrowed another sum and executed another bond for the consolidated sum of Rs. 1,000. The opposite party 1 and 2 obtained a money decree against opposite party No. 3 and in execution of that money decree attached the properties which were in the possession of the petitioner.

On the 5th July, 1919 the petitioner made an application under Order XXI, rule 58. The court rejected that application on two grounds first, on the ground that there was no necessity for him to apply under Order XXI, rule 58, and, secondly, on the ground that his application was too late.

It appears that the properties have now been purchased by the decree holder and he has now obtained possession of the properties through court. The application out of which the present proceedings have arisen was an application by the petitioner under Order XXI, rule 100, of the Code. The learned Munsif has taken the view that Order XXI, rule 63, is a complete answer to the case of the petitioner. I am wholly unable to accept this view. Order XXI, rule 63, provides that where a Claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to property "in dispute, but subject to the result of such suit, the order shall be conclusive".

Now the question arises whether it was at all necessary for the petitioner to apply under Order XXI, rule 58. The learned Munsif says that the applicant "could come" under Order XXI, rule 58, and as he "did come" he cannot now apply under Order XXI, rule 100. Now this view is quite erroneous. He could only apply under Order XXI, rule 58, on the ground that the property was not liable to attachment.

But then his position as a mortgagee did not entitle him to come to court and argue that the property was not liable to attachment. The order passed by the court in no way touched the interest of the mortgagee. He is now prejudiced because he has been dispossessed by the order of the Civil Court and in my opinion it was obligatory on the learned Munsif to dispose of the application in accordance with law I hold that Order XXI, rule 63, does not bar the application of the petitioner.

I must allow the application set aside the order of the learned Munsif and remand the case to him for disposal according to law.

Adami, J.

I agree.