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1901 DIGILAW 95 (CAL)

Bhajahari Pal v. Ram Lal Das

1901-07-10

body1901
JUDGMENT 1. This is an appeal from a judgment of the Officiating District Judge of Bankura disallowing a claim made by the present Appellants before him to certain properties attached by the decree-holder in execution of a decree Fie had obtained against them for their personal debts. The Appellants' petition of objection or claim was filed on the 27th September 1899. In that application they alleged that the properties which had been attached were the debattur properties of the idols, named Roghunath Ji Thakur and Mohamaya Thakurani. They further alleged that by a Will executed by their father in Agrahayan 1276 the properties 7 and 8 had been dedicated, and under the directions contained in the Will the Appellants had acquired the other properties attached by the decree-holder, which also they had dedicated to the same deities ; and that the income therefrom was spent in deb-sheba, and they had no personal right in them. They therefore prayed that the properties in question might be released from attachment. As stated already, the District Judge disallowed their application, and hence this appeal. The learned pleader for the decree-holder Respondent took a preliminary objection to the hearing of the appeal, on the ground that the matter fell under secs. 278, 280 and 281 of the Civil Procedure Code, and that consequently there was no right of appeal. On the other side it was contended that the question which the Appellants wished to raise fell under the provisions of cl. (c) of sec. 244 of the Code. 2. To consider the point raised for our determination we had to refer to the judgment of the District Judge and to some portions of the proceedings before him ; and we are bound to say that in our opinion the judgment is not by any means satisfactory ; but it is not necessary for us to say more, having regard to the view which we entertain with respect to the legal objection taken by the Respondents' pleader. 3. It may now be taken as settled law that all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge, or satisfaction of the decree, or the stay of execution thereof, must be dealt with in the execution proceedings themselves and cannot form the subject of a separate suit. The Calcutta High Court in the case of Rajrup Singh v. Ram Golam Roy I. L. R. 16 Cal. 1 (1888) has gone so far as to hold that even when the representatives of a deceased judgment-debtor object to the property being attached on the ground that they had obtained the same not from the deceased judgment-debtor but had inherited it from some body else, that question fell under the provisions of sec. 244, and if their objection was allowed the remedy of the decree-holder was not by a separate suit but by an appeal in the same proceeding. That view has been adopted in other subsequent cases, especially the case of Punchanun Bundopadhya v. Rabia Bibi I. L. R. 17 Cal. 711 (1890) and by Mr. Justice Ranade in the case of Govind v. Gangaji I. L. R. 23 Bom. 246 (1898). The present question, however, stands on a different footing. Here the claim which was put forward by the Appellants was not based on the ground of any interest they had acquired themselves from some body else; their objection to the attachment was that although they were in possession of the property, such possession was not on their own account, but on account of two idols, or Hindu deities, whose names were mentioned in their petition. 4. Having regard to the nature of the claim it becomes necessary to consider what the provisions of secs. 278 and 280 of the CPC are. Sec. 278 provides the procedure to be followed by the Court unless a claim is made to attached property ; and sec. 280 declares that if the Court is satisfied upon the investigation to be held under secs. 278 and 280 of the CPC are. Sec. 278 provides the procedure to be followed by the Court unless a claim is made to attached property ; and sec. 280 declares that if the Court is satisfied upon the investigation to be held under secs. 278 and 279, that, for the reasons stated in the claim or objection, the property attached was not, when attached, in the possession of the judgment-debtor or of some person in trust for him, or in the occupation 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 or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the Court shall pass an order for releasing the property, wholly, or to such extent as it thinks fit, from attachment. The latter portion of this section shows clearly that when the claim is made on the ground that the property, although in the possession of the judgment-debtor, was in his possession not on his own account or as his own property but on account of or in trust for some other person, as is the case in the present instance, the claim is to be allowed and the property released. That view was taken in a series of cases and we have not only the authority of this Court but also of the Bombay and Allahabad High Courts in support of what we have just expressed In the case of Shankar Dial v. Amir I. L. R. 2 All. 752 (1880), an objection was made to the attachment of certain property in execution of a decree by the judgment-debtor, on the ground that the property, although in his possession, such possession was on account of an endowment; and it was held that the objection taken by the judgment-debtor was of the nature to be dealt with under sec. 278 and the following sections ; and that the remedy for the party dissatisfied as under sec. 283 by a regular suit. Similarly, in the case of Nathmal Das v. Tajammul Husain I. L. R. 7 All. 278 and the following sections ; and that the remedy for the party dissatisfied as under sec. 283 by a regular suit. Similarly, in the case of Nathmal Das v. Tajammul Husain I. L. R. 7 All. 36 (1884), when an objection was made by the judgment-debtor to the attachment of certain land, on the ground that he was in possession of the same as mutwali, it was held that the matter did not fall within the provisions of sec. 214 of the Civil Procedure Code. In this Court also the question was decided on a similar way in the case of Roop Lall Dass v. Bekani Meah I. L. R. 15 Cal. 437 (1888). Then also certain properties were attached by the decree-holder, and an objection was made by the judgment-debtor that the property attached had been dedicated by him some time previously as wakf under a registered wakfnamah, and that he was only in possession as mutiwalli or trustee. The Court, after reviewing the cases on the subject, came to the conclusion that inasmuch as the judgment-debtor claimed to hold the property sought to be attached as trustee for third parties, the question was one under sec. 280 and not under sec. 244 ; and that therefore no appeal lay to this Court. That case has since been followed by the Bombay High Court in the case of Murigeya v. Hayat Saheb I. L. R. 23 Bom. 237 (1898), when Mr. Justice Ranado reviewed all the authorities, pointed out the reasons upon which the view already expressed was founded, and held that where a judgment-debtor puts forward a claim to certain property, not on his own account, but on account of some person whose trustee he alleges himself to be, it amounts to the assertion of a jus tertii, namely, the right of persons who are not parties to the decree or their representatives, and that consequently the matter in dispute does not come under the provisions of sec. 244 but falls under sec. 280, which gives no right of appeal. 5. Upon a full consideration of the authorities and the provisions of the law, we are of the same opinion, that there is no appeal to this Court. This appeal was therefore be dismissed with costs. We assess the hearing fee at two gold mohurs.