Mrs. M. D''Silva vs Mrs. Minnie Lal

Wort, J.—The result of the order made by the Subordinate Judge as far back as February 1934, may have turned out to be unfortunate for the petitioner, but that does not extend the jurisdiction which I have to revise that order. The point that arose was whether a share in the hotel which had been attached by the petitioner decree-holder should have been released from attachment as the learned Judge in this case has ordered. It is unnecessary to state the matter in detail.

A partition action was going on between Mrs. Oates and Mrs. D Silva and a receiver was appointed. During the course of the partition action the share of Mrs. Oates was sold to a third party. The interest of Mrs. Oates, as I have already stated, had been attached before judgment by the petitioner in execution of a decree for rent. The learned Judge in the Court below in the application which was made under O. 21, R. 58, went, into two questions; first, whether the third party claimant to whom I have referred, was in possession as purchaser from the judgment-debtor; and secondly, whether the purchase was legal or illegal. I shall dispose of the latter point first, because Mr. De appearing on behalf of the petitioner contends that the decision of the learned Judge should have been other than that at which he has arrived by reasons of S. 64 which makes any alienation of an attached property void. But it is sufficient to say that the question was not raised in that form in the Court below where the point argued was whether the purchase was legal or illegal by reason of the possession of the receiver. That disposes of that point.

The substantial question was whether the property was in possession of the purchaser from the judgment-debtor. As I understand Mr. De''s argument, in the first instance, it was this: that when once a person is found to be in possession under O. 21, S. 58, the Court has no jurisdiction to go behind that possession and enter on to a question of title. Baldly stated there is no dispute that that proposition of law is correct. But if Mr. De meant by his argument that the Court was precluded from entering into the question of whether the possession of the person actually found in possession was the possession of the judgment-debtor or not, I must say that with that I cannot agree. The very order itself precludes any such proposition of law being established. O. 21, R. 60, provides:

Where upon the said investigation the Court is satisfied that for the reason stated in the claim or objection such property, was not, when attached in the possession of the judgment-debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the judgment-debtor at such time, it was so in his possession, not on his own account...... but on account of or in trust for some other person,

then the property is released from attachment. Now, the question therefore for the Judge in the Court below was the possession of the judgment-debtor or some person in trust for him. It is true that the Court found that some person other than the judgment-debtor was in possession. It therefore became necessary to determine whether that person was in possession for the judgment-debtor, and in many cases of that kind it is often necessary to go into the question if that possession was the result of a purchase and whether the purchase was a benami purchase or not. Mr. De went so far as to say that in no circumstances could the question of benami be gone into. But the very case relied upon disposes of that argument. I refer to Sardhari Lal v. Ambika Pershad, (1888) 15 Cal 521 = 15 I A 123 = 5 Sar 172 (P C), where Lord Hobhouse in delivering the opinion of their Lordships of the Judicial Committee said in as clear terms as it is possible to say that the extent of the investigation under this part of the Code depended upon the circumstances of each case and expressly stated that their Lordships were not laying down any definite rule as to the extent of that investigation. If I may say so with great respect from the mere reading of the order itself that seems to be obvious. Therefore I clearly come to the conclusion that there was no doubt that the Judge had jurisdiction to go into the question of whether the possession of Mr. Smith, the receiver, was the possession of the judgment-debtor or not. If it had been the possession of the judgment-debtor then prima facie the claim would fail.

The order can be looked at from another point of view. Unless the decree-holder can establish that the possession of the person is the possession of the judgment-debtor, it seems to me impossible to say that he is entitled to claim against this property. That is only another way of stating the same proposition of law to which I have previously referred. Having entered into that question as a matter of mixed question of fact and law, the Judge had to determine what that possession was. Mr. Smith was the receiver appointed by the Court in the partition proceedings. Apparently therefore the possession of the receiver would be the possession of the Court; and the only way Mr. De can succeed on this point is by saying, following the decision in Kristamma Naidu v. Chapa Naidu, (1894) Mad 410 (F B), that the decision was in direct violation of of some principle of law. It is often a very difficult question as to what is to be considered to be the possession of the receiver: whether it is the possession of one person or another person is by no means an easy question. In any event it would be impossible to say that the Judge was acting in direct violation of some principle of law in deciding in favour of the claimant. Indeed from the judgment of the Judge in the Court below, it would seem to appear that the parties depended upon the two points which they raised and possibly agreed as to the proper principle of law to be applied. From the judgment as I understand it and from a perusal of the statement as to what the true position of law was, I should feel inclined to come to the conclusion that the parties in the Court below agreed to a position of law diametrically opposed to that which was argued by Mr. De in this Court.

But I do not propose to decide the case on that ground. It is impossible for me however to say, as Mr. De would suggest, that the law was so clear that it must be held that when the Judge decided the question erroneously, he was deciding consciously in violation of an established principle of law. It was a mixed question of fact and law in this case and from one point of view the Judge decided erroneously but that does not give me jurisdiction as has been pointed out so many times. On the merits of the case, as the possession appears to have been the joint possession, there seems no particular reason why at this stage of the proceedings the petitioner should be allowed to execute against this property. But again that is a matter which has no relevance to the point before me, and I therefore do not come to any definite conclusion with regard to it. It seems to me from any point of view that the application must be held to fail. The rule must be discharged with costs: hearing fee two gold mohurs.