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Patna High Court
Ganesh Lal Sarawagi vs Mahabir Sahu And Anr. on 10 January, 1929
Equivalent citations: 119 Ind Cas 909
Author: F Ali
Bench: F Ali


JUDGMENT

Fazl Ali, J.

1. The circumstances which have given rise to this application are briefly these.

2. The petitioner obtained a money decree against two persons Mahabir Sahu and Makhola Sahu on 11th March 1924 and got a certain house in the village Daboor attached in execution of that decree. Thereupon Kishun Sahu opposite party No. 2 put in a claim before the Subordinate Judge of Gaya under Order XXI, Rule 58 alleging that ghe had purchased the house from Makhola the father of opposite party No. 1 by virtue of kabala dated 21st December, 1923. On 10th December, 1927, the learned Subordinate Judge allowed the claim and released the property from attachment. The petitioner thereupon filed and application for review before the Subordinate Judge, one of the grounds being that the Subordinate Judge had committed an error of record while referring to the evidence of one Punit Mahto who had been examined on behalf of the claimant in the course of the enquiry before him. On 16th June, 1928, the learned Subordinate Judge dismissed the petition with the observation that although he had made a mistake in referring to the witness as a witness examined on behalf of the decree-holder, while he was really a witness examined on behalf of the claimant, yet apart from this fact there was sufficient evidence on the record to support his findings and that he did not see any sufficient reason for changing his views. The petitioner thereupon came up to this Court in revision and obtained a rule.

3. Now it is urged before me in support of the rule (1) that the learned Subordinate Judge should have considered whether the sale-deed relied on by the opposite party was a genuine or a collusive document executed to defraud the creditor; (2) that the learned Subordinate Judge having found the possession of the claimant should have proceed to consider whether the claimant was in possession of the house in dispute in his own rights or in trust for the judgment-debtor within the term of Order XXI, Rule 60. The learned Advocate for the petitioner has in the course of his able arguments referred me to the following cases Mae Intosh v. Bidhu BhusanSen 17 Ind. Cas. 12 : 16 C.W.N. 959, E.N.M.K. Chetty v. Chartered Bank of India, Australia and China 48 Ind. Cas. 182 : 11 Bur. L.T. 118, Phomon Singh v. Wells 76 Ind. Cas. 677 : 1 R. 276 : 2 Bur. L.J. 134 : A.I.R. 1923 Rang. 195 and Nainu v. Bhupendra Nath Rakhit 60 Ind. Cas. 616.

4. In the case of Mac Intosh v. Bidhu Bhusan Sen 17 Ind. Cas. 12 : 16 C.W.N. 959 it was found by the first Court that a judgment-debtor with the object of defrauding the creditors had executed a collusive sale deed of his property in favour of a third person who was in possession of the property and who preferred the claim to the property under Order XXI, Rule 58, Civil Procedure Code, when the property was attached by the creditor in execution of the decree. It was further found that the claimant was in possession of the property for the benefit of the judgment-debtor and to defraud his creditors. In these circumstances it was held by a Division Bench of the Calcutta High Court that in view of the findings of the lower Court the claim had been rightly dismissed.

5. In E.N.M.K. Chetty v. Chartered Bank of India, Australia & China 48 Ind. Cas. 182 : 11 Bur. L.T. 118 it was held by the Chief Court of Lower Burma that under Order XXI, Rules 60 and 61, the Court should consider whether at the time of attachment the property was in possession of the judgment-debtor as his own property and not on account of any other person or in trust for him; and that if this entailed a consideration of the bona fides of sale in his favour set up by the objector or the legal effect of the deed of conveyance, such matters should be gone into. In Phoman Singh v. Wells 76 Ind. Cas. 677 : 1 R. 276 : 2 Bur. L.J. 134 : A.I.R. 1923 Rang. 195 it was held that under Order XXI, Rules 59 and 60 it was incumbent upon the Judge to go into the question as to whether possession of the judgment-debtor was on his own account or on account of the applicant and it was not sufficient to enquire into the actual possession only. In Nainu v. Bhupendra Nath Rakhit 60 Ind. Cas. 616. certain property having been attached in execution of a decree the petitioner before the Court claimed an interest in and possession of the property. The Court disallowed the claim holding that” the petitioner had some interest but not the entire interest and the Court neither found what was the nature of the petitioner’s interest nor whether the judgment-debtor or the petitioner was in possession of the property. In these circumstances it was held that under Order XXI, Rules 60 and 61, Civil Procedure Code, the order was illegal and was liable to be set aside in revision by the High Court.

6. The principles deducible from these cases cited by the learned Advocate for the petitioner may be summarized as follows: (1) that in a claim case under Order XXI, Rule 58 the Court must come to a finding as to whether the claimant had at the date of the attachment some interest in or was possessed of the property attached; (2) that when the Court is satisfied that the property was at the time of the attachment in possession of the claimant it must be found whether he held possession of the property on his own account or in trust for the judgment-debtor; (3) that in certain cases in order to determine whether the claimant is in possession of the property on his own account of on account of the judgment-debtor it may be necessary to go incidentally into the basis of the claim put forward by the claimant.

7. In the present case the allegations made by the petitioner in his reply to the petition of claim filed by the opposite-party before the Subordinate Judge were that the claimant had never purchased the property and was not in possession thereof that the judgment-debtor had executed the sale-deed relied on by the claimant in order to defraud the opposite-party; that the claimant had neither received the consideration money nor obtained possession over the property in dispute, and that the sale-deed relied on by the claimant was a farzi transaction. The learned Subordinate Judge found that the plea taken up by the petitioner in his petition of objection that the claimant was not in possession of the property had not been made out and that the claimant had established that he had been in possession of the house in his own right and not in trust for the judgment-debtor. He further refused to go into the question as to whether the sale deed in favour of the claimant was or was not a benami transaction. His observation on this point will be found in the following passage in his judgment.

The decree-holder asserts that the kabzaset up by the claimant is a farzi transaction that the judgment-debtor has been in possession of the disputed house. I am no entitled to go into the intricate question of benami in this case: vide Monmohiney Dassee v. Radha Kristo Das 29 C. 543. The only point for determination in this case is whether the claimant has been in possession through his tenant as allege by him; if so, whether in his own right or in trust for the judgment-debtor.

8. Now, it is contented by the learned Advocate for the petitioner that it was necessary for the learned Subordinate Judge to have gone into the question as to whether the sale-deed was genuine or collusive, because without going into the question he could not have propertly decided as to whether the claimant was in possession of the property on the won account or in trust for the judgment-debtor. The contention of the learned Advocate is not without some force, but at the same time it must be remembered that it has been repeatedly held that in a claim case arising under Order XXI, Rule 58 the Court is not entitled to go into the question of benami: see Ram Kishun Singh v. Damodar Prasad 75 Ind. Cas. 856 : A.I.R. 1924 Pat. 506 : 5 P.L.T. 107. Besides, the position taken up by the petitioner in his objection petition in possession of the claimant but it was in possession of the judgment-debtor himself. The Subordinate Judge, however, found that this was not so and that the found that this was not so and that the claimant was himself in possession of the disputed property. This being so and when I find that the learned Subordinate Judge had to determine in the case, as will appear from the passage quoted by me and when the learned Subordinate Judge has come to certain clear findings on those points, I do not think I shall be justified in interfering in this case, especially as the petitioner has another remedy open to him, that is to say, he can proceed by way of a suit.

9. The application is, therefore, dismissed, but I don not think this is a case in which any costs should be allowed to the opposite-party.


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