SARTOO PROSAD C. J. : In this application under S. 115, Civil Proc dure Code, the petitioner, who is a decree-holder has moved against an order of Mr. B. C. Medhi Subordinate Judge, Lower Assam Districts date 21st February, 1955 by which he allowed the claim of the opposite party under O. 21, R. 58, Civil Procedure Code. (2) The facts are that the petitioner obtained a mortgage decree. But as the decree was ni satisfied by sale of mortgaged properties, he eventually got a personal decree against the judgmen debtor under O. 34, R. 6, Civil Procedure Code on 24th April, 1942. It is this decree which 1 sought to execute in the execution case to which the proceedings relate. The decree was originally against Jamiruddin the father of Shamsher Molla, the husband of the opposite party. Jamiruddin died and in his place Shamsher Molla, the husband has been substituted and the execution proceeded against him. 1 the execution petition four houses which were alleged to belong to judgment-debtor were sought to be attached. The opposite party filed an objection to the attachment on the ground that the houses in question had been transferred to her by the father-in-law, late Jamiruddin, under a registered deed of sale dated 7th November, 1933. The consideration for the sale is said to be the value of certain ornaments which the father-in-law secured from the opposite party. (3) It is contended on behalf of the petitioner that the learned Subordinate Judge has acted illegally and with material irregularity in not deciding the case according to law. One of the essential questions which it was incumbent on the Court below to decide in a proceeding of this nature was to find out whether or not the claimant was in possession of the property sough to be attached in her own rights as such or the judgment-debtor was in possession of the property. The learned Subordinate Judge appears to have placed great reliance upon the deed of sale executed by the father-in-law in favour of the opposite party. It is pointed out on behalf of the petitioner that this deed of sale was executed at or about the period when the mortgage bond in question had been executed and the intention of the father-in-law was to create a benami sale in favour of the opposite party after taking the mortgage loan. It is pointed out on behalf of the petitioner that this deed of sale was executed at or about the period when the mortgage bond in question had been executed and the intention of the father-in-law was to create a benami sale in favour of the opposite party after taking the mortgage loan. It is urged that the mortgage suit was filed in 1934. Whatever the position may be as to the validity or otherwise of this document in favour of the opposite party and whether or not it conveyed any actual title to her, the essential question to be decided in the case was the ques­tion of possession. The learned Subordinate Judge does not appear to have applied his mind to this material aspect of the case and come to a posi­tive finding that the claimant was in possession of the houses in question in her own rights as such and not in possession on behalf of the judg­ment-debtor or the deceased father-in-law. It is not disputed that the husband as well as the father-in-law continued to live in the same house in spite of the alleged transfer in favour of the opposite party and our attention has been drawn to some evidence of the husband of the opposite party himself wherein it is stated that the Chowkidary tax and the rent continued to be paid by the father-in-law himself as long as he was alive. In any case all this evidence had to be con­sidered by the learned Subordinate Judge himself and he had to find out after a careful considera­tion of this evidence as to whether the claimant was actually in possession of the houses in her own rights and not on behalf of the judgment-debtors, and the mere fact that the document stood in her name was not sufficient to dispose of the question which the learned Subordinate Judge had to investigate. (4) The learned Subordinate Judge also seems to have fallen into some error in that he vacated the attachment of two of the houses on the ground that the claim related to only one house whereas there was some kind of suspected manipulation in the attachment process in re­gard to the other two houses. It may be observed that in the execution petition itself all the houses have been mentioned and in the other processes the attachment related to all the houses under execution. It may be observed that in the execution petition itself all the houses have been mentioned and in the other processes the attachment related to all the houses under execution. It is also wrong to think that the claim rela­ted to only one of the houses and not to the other houses. On a perusal of the order it seems that the learned Subordinate Judge did not care­fully apply his mind to these materials. As the point which should have been decided by the learned Subordinate Judge has not been decided in this case, we have no option but to set aside the order and to direct that he should proceed to dispose of the matter according to law. The application is accordingly allowed. There is no appearance by the opposite party. There­fore there will be no order for costs of this appli­cation. The Rule is made absolute. (5) RAM LABHAYA J. : - I agree. Application allowed.