JUDGMENT Maclean, C.J. - This appeal must succeed. The lower Appellate Court has taken the view that such an action as this will not lie by reason of sec. 315 of the Code of Civil Procedure. In the first place, if sec. 315 would have any application it may be pointed out that it is only an enabling section and not prohibitive of an independent action in a Civil Court. There is ample authority for this proposition. I may refer to the case of Jatindra Mohan Tagore v. Mahomed Basir Chowdhry ILR 32 Cal. 332 (1904) decided by four Judges of this Court. Then a point was taken, it seems, for the first time before the lower Appellate Court-it was not taken in the written statement and there is no reference to it in the judgment of the first Court-that the suit cannot proceed in the absence of the judgment-debtors. Now, if there is anything in that objection, it ought to have been taken at the earliest stage of the suit, so that the Plaintiff might have had an opportunity of making the judgment debtors parties. But the present question is between the Plaintiff and the Defendant No. 2 who was the decree-holder. The Plaintiff says: "you have got my money under a sale which has been set aside and I want it back from you." I think the Plaintiff is entitled to get it and that the presence of the judgment-debtors is not necessary. I do not think, therefore, that sec. 315 is a bar. The result is that the order of the Subordinate Judge must be discharged and that of the Munsif restored with costs. Caspersz, J. I am of the same opinion.