JUDGMENT
Venkataramana Rao, J.
1. This appeal arises out of a suit instituted by the plaintiff-appellant under Order 21, Rule 63, Civil Procedure Code, for a declaration that the property which is the subject-matter of the suit is her own property not liable to be attached in execution of a decree in S.C.S. No. 705 of 1931 on the file of the Sub-Court, Cocanada, obtained by the third defendant against her husband, the first defendant. It transpires that Subsequent to the passing of the decree in the said suit the first defendant was adjudicated insolvent on the 15th March, 1932 and all his property vested in the second defendant, the Official Receiver. The suit property was attached on the 13th April, 1932. The plaintiff preferred a claim under Order 21, Rule 58, Civil Procedure Code, requesting the Court to release the property from attachment on the ground that the property is her own property as she purported to have purchased the same under a sale deed dated 10th November, 1930. The claim was resisted by the third defendant decree-holder on the ground that the transaction was benami for the benefit of the first defendant and not bona fide. The claim was disallowed on the ground that the transaction was not bona fide. Thereupon the plaintiff filed the present suit for a declaration that the suit property belongs to her and not to the first defendant, and therefore the property was not liable to be attached as the property of the first defendant. There was also another ground alleged for the release of the attachment, namely, that the attachment having been made subsequent to the first defendant’s adjudication in insolvency without the leave of the Insolvency Court the attachment is invalid. The learned District Munsif who tried the suit upheld the latter objection and gave a decree in favour of the plaintiff without going into the question whether the plaintiff was entitled to the suit property or not. The learned Subordinate Judge reversed the said decision on the ground that even assuming that the attachment is invalid on the ground alleged still the plaintiff had to establish that the property belonged to her and that the question of title ought to have been determined by the District Munsif and therefore he remanded the suit for decision on the merits of the plaintiff’s claim. It is against the order of remand that this appeal has been preferred. It is contended by Mr. Y. Suryanarayana on behalf of the appellant that it is not incumbent on the plaintiff to establish a title to the property but it is enough if she makes out that the attachment was invalid and therefore the property was not liable to be attached. He lays considerable emphasis on the language of Order 21, Rule 58 that the claim or objection is preferred to the Court on the ground that the property is not liable to be attached and all that he has to show in the claim proceedings is that the property is not liable to attachment and if he satisfies the Court that by virtue of the insolvency proceedings the property is not liable to be attached, the Court is bound to release the property from attachment irrespective of the questions of the claimant’s title and Order 21, Rule 63 being a continuation of the claim proceedings, it is enough if he is able to substantiate the invalidity of the attachment. In my view this contention is untenable. An examination of the relevant provisions of Order 21, Rules 58 to 63 clearly indicates that the scope of a suit under Order 21, Rule 63 is to declare the title to the property which is sought to be attached in execution proceedings. The language of Order 21, Rule 63 is clear and unambiguous. The party against whom the order is made under the previous rules is required to establish the right which he claims to the property in dispute. The words “establish the right” mean that the right claimed in the suit must be declared. If the plaintiff is an unsuccessful claimant he must establish that the property belongs to him or that he has some interest independent of the title of the judgment-debtor and therefore the property is not liable to be attached. If the plaintiff is the decree-holder he must establish that the property he seeks to attach is that of the judgment-debtor or the judgment-debtor has some interest therein which he is entitled to attach. Under Order 21, Rule 58 no doubt the ground on which the claim or objection is to be preferred is that the property is not liable to attachment, but under Order 21, Rule 59 what the claimant or objector has to show is indicated. He must establish that at the date of the attachment he has some interest in or was possessed of the property attached, i.e., a sufficient interest to enable the Court to maintain him in possession of the property as against the judgment-debtor. This is made sufficiently plain by the following rules 60 and 61. Under the said rules if the Court is satisfied that the claimant is in possession of the property on his own account the property is to be released from attachment. But if it is shown that the property is in the possession of the claimant on account of the judgment-debtor or in the possession of the judgment-debtor in his own account but not in trust for another the property is not to be released from attachment. Though in the claim proceedings the question to be determined by the Court is one of possession it is dependent upon the title of the claimant, independent of the title of the judgment-debtor. Thus it will be seen that we cannot entirely divorce the question of title from possession. It may even be the possession of a trespasser can be sustained because it will be possessory title hostile to that of the judgment-debtor. Vide Ramasami Chettiar v. Mallappa Reddiar (1920) 39 M.L.J. 350 : I.L.R. 43 Mad. 760 at 778 and 779 (F.B.). As observed by Rankin, J., in Najimunnessa Bibi v. Nacharuddin Sardar (1923) I.L.R. 51 Cal. 548 at 557:
It is impossible to separate altogether the question of possession and of title. Thus, if the judgment-debtor was in possession, he may have been in possession as agent or trustee for another, and this has to be enquired into…. To that extent, the title may be part of the enquiry in a claim case.
2. If therefore it be shown that the claimant has no title independent of the title of the judgment-debtor-he will fail because the possession which he seeks to maintain cannot be possession on his own account. In Nga Tha Yah v. F.N. Burn (1868) 2 Beng. L.R. 91 (F.B.), in construing Section 246 of Act VIII of 1869 corresponding to Order 21, Rules 58 to 63, Civil Procedure Code, Sir Barnes Peacock, C J., observed:
The claimant would not have a right to interfere unless he proved that they (the goods) belong to him or were in his possession.
at p. 99
Possession being prima facie evidence they were his property.
3. When a suit is instituted under Order 21, Rule 63 it is not merely a continuation of the claim proceeding, but what is essentially litigated is a question of title. For example, it may be the claimant in the claim proceedings would have succeeded by merely showing that he was a trespasser but the decree-holder can establish in a suit which he files under Order 21, Rule 63 that the trespass was not of sufficient duration to confer any title in the successful claimant and the property still belonged to the judgment-debtor and that therefore he is entitled to attach the property as that of the judgment-debtor. Vide Ramasami Chettiar v. Mallappa Reddiar (1920) 39 M.L.J. 350 : I.L.R. 43 Mad. 760 at 779 (F.B.). As observed by Wallace, J., in Donepudi Subramanyam v. Nune Narasimham (1928) 56 M.L.J. 489:
The claim enquiry merely settles whether the claimant is in possession of the property in his own behalf or on behalf of the judgment-debtor. But the claimant in his suit has to establish right which he claims to the property that is, the question of title, is also raised for decision. The suit is therefore really in part a new legal proceeding, and is not entirely restricted to the questions within the scope of the claim enquiry.
4. No doubt the words ‘to establish the right’ may enable the plaintiff to claim a larger relief than a mere declaration of title but it certainly does indicate that what the plaintiff has to establish is his title to the property in dispute. That this is the true view seems to be clear from the observations of the Judicial Committee in Sardhdr Lal v. Ambika Pershad (1888) L.R. 15 I.A. 123 : I.L.R. 15 Cal. 521 at 526 (P.C.):
A suit may be brought to claim the property, notwithstanding the order, but the law of limitation says that the plaintiff must be prompt in bringing the suit. The policy of the Act evidently is to secure the speedy settlement of questions of title raised at execution sales.
5. Considerable insistence was placed by Mr. Y. Suryanarayana on the observations of Madhavan Nair, J., in Pakirayya v. Kamasastri A.I.R. 1933 Mad. 328 at 329, which seems to lend colour to his contention that it may not be incumbent upon the plaintiff to establish his title to the property unless he himself seeks a declaration of title thereto. What happened in that case was, a question of title was raised and the learned Judge observed that the Lower Court was right in determining that question as evidence in regard thereto was adduced. It is not authority for the proposition that a claimant before he can get relief is not bound to establish his title to the property and he can succeed by merely saying that the order of attachment was not properly made. Whatever Madhavan Nair, J., may have intended to lay down in the said decision, his later judgment in Venkayya v. Raghavayya (1935) 68 M.L.J. 590, does not support Mr. Suryanarayana. In that case the learned Judge makes the following observation at p. 592:
This Court had held in Pakirayya v. Kamasastri A.I.R. 1933 Mad. 328 at 329 that the terms of Order 21, Rule 63 are wide enough to include a suit based upon title. The point to be observed is that the rule does not specifically say either that it is possession on the date of the claim proceedings that should be established or that it is the title of the claimant that should be established. The words are ‘the claimant may institute a suit to establish the right which he claims to the property in dispute’. In order to prove that he has right to the property in dispute a consideration of his title as well as of possession will be relevant. The two questions cannot be separated one from the other, for, in finding out who is in possession of the property, the question as to who has title to it will be very relevant because ordinarily possession will follow title.
6. This observation clearly supports the view which I have taken that it is incumbent upon the plaintiff to establish his title to the property before he can get the relief he wants, namely, the release of the property from attachment. This appeal therefore fails and is dismissed with costs. Leave refused.
