SARJOO PROSAD, C. J.: This application under S. 115, Civil P. C., is directed against an order of Sri H. C. Datta, Sub­ordinate Judge, Upper Assam Districts, dated 22-12-1953, in which he has allowed a claim petition filed by the Opposite Party under O. 21, R. 58 read with 0. 38, R. 8, Civil P. C. (2) The admitted facts are that the petitioner instituted a Money Suit against Opposite Parties, Hariram Brahman and Sreeram Brahman, for recovery of a sum of money said to have been lent to them on a promissory note on 25-12-1947. The peti­tioner applied for attachment before judgment, which was allowed on 24-1-1950. The suit was even­tually decreed on compromise between the parties on 14-8-1952. But as the decretal amount was not paid, the petitioner was compelled to proceed to exe­cute the decree in Execution Case No. 37 of 1952. It was then that in December, 1952 the Opposite Party No. 1, Musst. Someli Brahmani, who is the wife of Opposite Party No. 2, Hariram Brahman, filed the claim application. She alleged that the attached properties had been given to her under a registered deed of gift, dated 6-7-1949, executed by Hariram Brahman, Opposite Party No. 2. The learn­ed Subordinate Judge has disposed of the applica­tion by a somewhat speculative order, without seeking to decide the matter according to law, as contem­plated by Rr. 59 and 60 of O. 21, Civil P. C. (3) Mr. Das appearing on behalf of the Oppo­site Parties, has raised a preliminary objection that the petitioner having a remedy open under R. 63 of O. 21 by way of a suit, no relief should be given to him under S. 115, C. P. Code. It is true that the petitioner has a remedy by way of a suit, but if it is found that the order complained of does not decide the matter according to law, in other words, if there is a failure to exercise jurisdiction on the part of the Court below, in deciding the matter, or there is material illegality or irregularity in the exer­cise of such jurisdiction, this Court is not prevented from entertaining the application in revision, merely because the petitioner has some other remedy also available. (4) In the present case, the learned Subordinate Judge appears to suggest in his order that the deed of gift, under which the Opposite Party No. 1 claims, may be a benami transaction, but he thinks that the question cannot be gone into in this pro­ceeding and, for this reason the property has to be released. In our opinion, this reason is quite inade­quate to dispose of the matter. It is true that in a proceeding of this nature, the Court cannot be ex­pected to go into the question of title. Rule 60 of O. 21 points out that where, upon investigation, the Court is satisfied that the property attached is in possession of the judgment-debtor or of some per­son in trust for him or that, being in the possession of the judgment-debtor, it was so in his possession, not on his own account, but on account of or in trust for the claimant, then the Court shall make appro­priate orders rejecting the claim petition or releasing the property, as the circumstances of the case re­quired. Therefore, if the Court suspected that the transaction was a benami transaction, it was the duty of the Court to find out whether the possession claim­ed by the Opposite Party No. 1 was possession on her own account by virtue of the deed of gift executed in her favour, or possession on behalf of the judg­ment-debtors. The learned Subordinate Judge has ignored this vital consideration. The learned Subordinate Judge then proceeds to observe that although it may be suspected that both Musst. Someli and Hariram were living toge­ther in the house, yet there was no satisfactory and convincing evidence that Hariram was still in oc­cupation thereof. This reasoning again does not answer the question which arose for consideration in a proceeding of this nature. The Court had to find, on the evidence led by the claimant, whether the claimant was in independent possession of the pro­perty claimed, or that her possession was merely the possession of the judgment-debtors. In fact, the observations made by the learned Sub-Judge do not show that he came to any finding at all on the question of possession; and he put the matter in a negative form as if the onus to prove that the claimant was not in possession in her own rights was upon the petitioner. In fact, the observations made by the learned Sub-Judge do not show that he came to any finding at all on the question of possession; and he put the matter in a negative form as if the onus to prove that the claimant was not in possession in her own rights was upon the petitioner. We are, therefore, satisfied, on a perusal of the order, that the essential question which had to be decided by the learned Subordinate Judge has not at all been decided by him, and, in the circumstances, we feel no hesitation in interfering with the order of the learned Subordi­nate Judge. (5) Cases have been cited on behalf of the Op­posite Parties to show that the question of benami should not be decided in a claim proceeding. It is true that in dealing with a claim under O. 21, R. 58, C. P. Code, or with an objection filed against an order of attachment before judgment, the Court cannot finally adjudicate upon the question of title, but there is nothing to prevent the Court in examin­ing the question incidentally for the purpose of deter­mining the nature of possession claimed in the pro­ceeding. I have already discussed the scope of the enquiry in a proceeding of this nature, and the re­quirements of R. 60 of O. 21. In this connection I may usefully refer to a decision of Manohar Lall, J. in - "Sm. Chunni Debi v. Sm. Annapurna Dai", AIR 1944 Pat 242 (A), with which Fazl Ali, C. J. (as he then was) agreed. The learned Judge said thus: "Upon this somewhat lengthy review of the case law, I come to the conclusion that the proper mode of investigating the question of possession of a claimant in a proceeding under O. 21, Rr. 58 to 61 is that pointed out by their Lordships of the Judi­cial Committee in - 'Sardhari Lai v. Ambika Pershad', 15 Ind App 123 (B), and by Fazl Ali, J. (as he then was) in - 'Ganesh Lal v. Mahabir Sahu', AIR 1929 Pat 273 (C). I emphasise the third propo­sition deduced in the last case that in certain cases, in order to determine whether the claimant is in possession of the property on his own account or on account of the judgment-debtor, it may be necessary to go incidentally to the basis of the claim put for­ward by the claimant. I emphasise the third propo­sition deduced in the last case that in certain cases, in order to determine whether the claimant is in possession of the property on his own account or on account of the judgment-debtor, it may be necessary to go incidentally to the basis of the claim put for­ward by the claimant. The basis of the claim may be alleged by the other side to be a benami transac­tion. But I desire to impress upon the Subordinate Courts that they are expected to decide the question of possession upon a fair review of the oral and do­cumentary evidence in the case, and that they should consider the question of title only incidentally in order to assist them in weighing the contradictory evidence of possession which is adduced in the case on behalf of the parties. In every case, real attempt should be made to decide upon the question of pos­session having in view all the attendant circumstan­ces, and the decision should not be arrived at in such a way as to leave the aggrieved party with the im­pression that the Court has dealt with the question of possession in a perfunctory manner being carried away by mere surmises and conjectures." The legal position could not be put in more ex­press and impressive terms, and I wish to reiterate the warning which has been sounded by the learn­ed Judge as to the duty of a Court dealing with such applications and the point to be decided in such cases. (6) The application is accordingly allowed, and the order of the learned Subordinate Judge is set aside. The case will go back to the learned Subordi­nate Judge for a decision of the matter according to law. The costs will abide the result of the claim proceeding. (7) Hearing fee is fixed at Rs. 32/-. (8) DEKA J.: I agree. Application allowed.