JUDGMENT SARKAR J. - This appeal arises out of a suit brought by the appellants in 1947 .for a declaration that the defendants first party had acquired no right or title to a property under certain deeds and that the deeds were inoperative and void. The suit ,was decreed by the trial court but, on appeal by the defences first party to the High court Patna that decree was set, aside high court having granted a certificate of fitness the appellants, have brought the Present appeal. The defendants first party have alone and will be referred to as the respondents. 2. The High Court held that as the appellants ,were not in possession of the property at the date of the property at the date of the suit as , found by the learned trial judge and the respondents were, their suit must fail under the, proviso to section 42 of the Specific Relief Act as the appellants had failed to ask for the further relief of recovery of possession from the respondents. In this view of the matter the high Court did not consider the merits of the case. The fact however was that at the appellants of the suit the property was under attachment by attachment under powers conferred by section 145 of the Code of Criminal Procedure and was not in the possession of any party. This fact was not noticed by ,the high Court the reason why it escaped the High Courts attention does not, appear on the record. 3. The only, point argued in this appeal was whether in view of. The attachment; the appellants could have in their suit asked for the their for delivery of possession to them, If they could not, the suit Would net be hit by the proviso to section 42. The parties seem not to, dispute that in the, case of an attachment under section 146. of the, Code as it stood before its amendment in 1955. a suit for a simple declaration of title Without a prayer for delivery of attachment under possession is competent. The parties seem not to, dispute that in the, case of an attachment under section 146. of the, Code as it stood before its amendment in 1955. a suit for a simple declaration of title Without a prayer for delivery of attachment under possession is competent. The respondents contend that the position in the Case of an attachment under section 145 of the Code is different, and in such a, case the magistrate holds possession for the party who is ultimately found by him to have been in possession when, the first order under the section 145 in the present case is still made. It was said that a suit for declaration of title pending such an attachment is in competent under the proviso to section 42 unless recovery of possession is also asked for. It appears that the attachment under section in the present case is still continuing and no decision has yet been given in the proceedings resulting in the attachment. 4. In our view, in a suit for declaration of title to property filed when it stands attached under section 145 of the Code, it is not necessary to ask for the further relief of delivery of possession. The fact, if it be so, that in the case of such an attachment, the magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession is in our; opinion, irrelevant. On the question however whether the magistrate actually does so or not, it is unnecessary to express any opinion in the present case. 5. The authorities clearly show that where the defendant is not in possession and not in a Position to deliver possession to the plaintiff, it is not, necessary for the plaintiff in a suit for, a declaration ,of title to property to Claim possession, See $under Singh Mallah Singh Sanata Dharam High School, Managing committed ,Bunder Singh Mallah Singh Rajput High school (1). Now it is obvious that in the present case, the respondents were not in posses the appellants. The magistrate was in possession, for whomsoever, it does, not Matter, and he was not of course a party to the suit. Now it is obvious that in the present case, the respondents were not in posses the appellants. The magistrate was in possession, for whomsoever, it does, not Matter, and he was not of course a party to the suit. It is pertinent to observe that in Nawab Humayun Begam v. Nawab Bhah Mokammad Khan (1), it has been held that the further contemplated by the proviso held that the further relief contemplated by the proviso to section 42 of me Specific Relief not is relief against the defendant only. We may add that in K. Sundaresa lyer v. Sarvajana Sowkiabil Virdhi Nidhi Ltd. (2), it was held at it was not necessary to ask for possession when property was in custodia legis,. There is no doubt that property under attachment under section 145 of the code is in custodia legis. These cases clearly establish that Code is in caia legi,. These oases clearly establish that it was not necessary for the appellants to have asked for possession. 6. In Dukhan Ram v. Ram Nanda Singh (3), a contrary view appears to have been taken. The reason given for this view is that the declaratory decree/in favor of the plaintiff would not be binding on the magistrate and he was; free in spite of it to find that possession at the relevant time was with the defendant and deliver possession to him. With great. respect to the learned Judge that case, the question is not whether a declaratory cocker would be binding on the magistrate or not. The fact that it may not be binding would not affect the competence of the suit. The suit for a declaration without a claim for the relief for possession would still be comment in the view taken in the cases earlier referred to, which is, that it is not necessary to ask for the relief of delivery of possession where the defendant is not in possession and, is not able to deliver possession, which, it is not disputed, is the case when the property is Under attachment under section 145 of the .code. We think that Dukkan Ram, case (3) had not been correctly decided. we may add that no other case taking that view was brought to our notice. 7. For these reasons, we hold that the suit out of which this appeal has arisen was competent. We think that Dukkan Ram, case (3) had not been correctly decided. we may add that no other case taking that view was brought to our notice. 7. For these reasons, we hold that the suit out of which this appeal has arisen was competent. We, therefore, allow the appeal but as the merits of the case had not been gone into by the High Court, the matter must go back to that Court for decision on the merits, The appellant will get the costs here and below.