JUDGMENT
Richardson, J.
1. The petitioner in this Rule preferred a claim under Order XXI, Rule 58, Code of Civil Procedure, in respect of a property which had been attached by the opposite party in execution of a decree. The petitioner’s plea was that he had purchased this property from the judgment-debtor under the decree prior to the attachment and was in possession of the property on his own account. The learned Subordinate Judge in the Court below states in his order under appeal that the petitioner has proved his Kobala. There is, however, no clear finding in the order whether the petitioner is or is not in possession of the property on his own account. On the strength of the terms on which the property was purchased as evidenced by the conveyance, the learned Subordinate Judge has made a conditional order. It appears from the conveyance that as part of the consideration the petitioner gave an undertaking to the vendor to pay the sum of Rs. 2,500 on account of the Execution Case No. 1392 of the Court of the First Munsif of Chittagong. Execution Case No. 1392 was pending at the date of the conveyance and execution was sought thereby of the decree which is now again under execution, the present case being No. 1651 of 1916. As I have said, on the strength of that undertaking the learned Subordinate Judge has allowed the petitioner’s claim conditionally, the directions are that if the petitioner pays R3. 2,500 within ten days the property claimed will be released from the attachment and if that amount is not paid the claim is to stand rejected and the property sold for the sum of Rs. 2,500 or any larger sum it may fetch. Without expressing any opinion as to the precise meaning or effect of the conveyance, I am of opinion that the learned Subordinate Judge on the facts, so far as he has found them, was not entitled and had no jurisdiction to make any such conditional order. The transaction on which the petitioner’s to him is based bears a strong resemblance to the transaction which this Court had before it in the case of Sheoraj Nandan Singh v. Gopal Suran Narain Singh 18 C. 290 : 9 Ind. Dec. (N.S.) 10 and the observations of Sir Comer Petheram, C.J., in that case are pertinent in the present connection. The learned Chief Justice said: “If the object of the decree-holder is to get rid of the effect of that transaction by showing that it is not binding upon him under Section 53 of the Transfer of Property Act, or by contending that notwithstanding that transaction the applicant is liable to pay this debt because he has agreed with the judgment-debtor to pay that for her, he must be made liable to pay it in some other proceeding much more elaborate than this one.” These observations are strictly applicable in the present case, if the petitioner is in possession of the property on his own account. If he is not in possession on his own account other consideration will, no doubt, arise. The order in the mode in which it was made is clearly bad, as the learned Subordinate Judge has not determined the crucial question whether the petitioner is in possession on his own account or is in some way in possession on account of the judgment-debtor or the representative of the judgment-debtor. The order, in my opinion, must be set aside in its entirety and the case remitted to the Subordinate Judge to be re-heard with reference to the observations I have made. If the learned Subordinate Judge finds on the materials on the record that the petitioner is in possession on his own account under title of the conveyance executed in his favour by the original judgment-debtor, the claim should be allowed and allowed unconditionally; otherwise the learned Subordinate Judge will make such order as he thinks fit. To this extent the Rule is made absolute. The costs of this Rule will abide the result. We assess the hearing fee in this Court at three gold mohurs.
Walmsley, J.
2. I agree.
