Roop Lall Das And Anr. And Mohinee … vs Bekani Meah on 24 January, 1888

Calcutta High Court
Roop Lall Das And Anr. And Mohinee … vs Bekani Meah on 24 January, 1888
Equivalent citations: (1888) ILR 15 Cal 437
Bench: Norris, Beverley


1. These are appeals from an order of the First Subordinate Judge of Dacca under Section 280 of the Code of Civil Procedure, releasing from attachment certain property of the judgment-debtor on the ground that the property in question was wakf property, and that the judgment-debtor was merely in possession of it as a trustee.

2. A preliminary objection has been raised that no appeal lies from an order under Section 280 of the Code, and that the decree-holders’ proper course, if dissatisfied with that order, was to institute a regular suit in accordance with the provisions of Section 283.

3. On the other band it is contended for the decree-holder that this was an order between the parties to the suit relating to the execution of the decree, and was therefore an order under Section 244 of the Code; that under the definition of “decree” in Section 3 of the Code the order in question was a “decree” from which an appeal lies under Section 540; and that under Section 244 no separate suit will lie.

4. For the respondent Mr. Evans argues that, this being a claim or objection set up by the judgment-debtor on behalf of third parties-that is to say, the beneficiaries under the uakfnamah–the order was an order properly made under Section 280 of the Code, and that by Section 283 that order is conclusive between the parties subject to the result of any suit that may be brought under the provisions of that section.

5. On the other band, Mr. Woodroffe, for the decree-holder, appellant, contends that the “party” spoken of in Section 283 means a third party who may have preferred a claim or objection; that the provisions of Sections 278 to 283 do not refer to questions raised between the parties to the suit, which are questions to be decided under Section 244 of the Code; and that such decisions are appealable Under Article 3. And further that, even assuming that Section 283 will apply to an order made against the judgment-debtor the word “conclusive” does not necessarily mean that no appeal will lie against such order.

6. It appears that this question has been before the Courts on several previous occasions, and we think that the various cases which have been cited before us indicate very clearly the proper principle upon which it should be decided. That principle appears to be this, that where the judgment-debtor claims the property which is the subject of the attachment, either on his own account as his own property, under whatever right, or as the representative of third parties in which representative capacity he has been sued, the question is properly one between the parties to the suit under Section 244. But where the judgment-debtor raises the claim or objection on behalf of third parties who are not represented before the Court, the order made must be regarded as an order under Section 280, and the only mode in which that order can be contested is in a regular suit as provided by Section 283.

7. We are of opinion that this view of the law is not inconsistent with the sections of the Code (278-283) which treat of this matter. When a claim or objection is preferred to property which has been attached, the investigation which is to be made under those sections is an enquiry as to whether the property is liable to attachment. By Section 279 the claimant or objector is required to show that at the date of attachment he had some interest in, or was possessed of, the property. Then Sections 280 and 281 proceed to lay down the principles upon which the Court is to decide whether or not the property is liable to attachment. Section 280 says that if upon such investigation the Court finds that the property (l) was not when attached (a) in the possession of the judgment-debtor, (b) or of some person in trust for him, (c) or in the occupancy of a tenant or other person paying rent to him; or that (2) being in the possession of the judgment-debtor it was in his possession (i) not on his own account or as his own property, but on account of and in trust for some other person; or (ii) partly on his own account, and partly on account of some other person, the Court shall pass an order releasing the property wholly, or to such extent as it thinks fit, from attachment.

8. If, on the other hand, the Court is satisfied that the property was at the date of the attachment (a) in the possession of the judgment-debtor as his own property, and not on account of any other person; or (&) in the possession of some other person in trust for the judgment-debtor; or (c) in the occupation of a tenant or other person paying rent to the judgment debtor, Section 281 says that the Court shall disallow the claim.

9. Section 282 deals with the case of a claimant or objector who has a mortgage or other lien upon the property. And then Section 283 gives the “party” against whom an order may be made under the three previous sections a right of suit to establish his claim, but, subject to such suit, declares that the order made under those sections shall be conclusive.

10. It is clear that the sections are wide enough to include, and in fact do contemplate, objections raised by the judgment-debtor as well as by third parties who may claim to be possessed of, or to have an interest in, the property. But we think that any objection raised by the judgment-debtor, in order to come within the purview of these sections, must be an objection in the interests of third parties-that is to say, an objection that he is merely holding possession of the property in trust for third parties who are not before the Court, and whose rights cannot therefore be properly and finally adjudicated upon in the execution proceedings. If the objection is raised by the judgment-debtor in his own behalf or in a representative capacity in which he has been sued, it is a question between the parties to the suit which may properly, and which the law says shall, be decided in the execution proceedings, and not by a separate suit. The object of this provision of the law is apparently to prevent needless litigation; and the test, as to whether the order made upon the objection falls within Section 244 or not, appears to depend on whether or not all the necessary parties are before the Court. If they are before the Court, there is no reason why the Court should not finally adjudicate upon the matter in issue. If they are not before the Court, the Court is to make a summary order for the purpose of the execution proceedings, leaving the parties free to contest the matter further, if necessary, in a regular suit to which all persons interested could be made parties.

11. We think that on examination all or nearly all of the decided cases will be found to be in accordance with this principle. The decision of the Privy Council in Chowdry Wahed Ali v. Mussamut Jumaee 11 B.L.R. 149 : 18 W.R. 185 established the proposition that where a decree was properly passed against a person in a representative capacity, that person was a party to the suit with respect to any question that might arise relating to the execution of the decree, and that any such question should be decided in the execution proceedings and not by separate suit. That decision was expressly followed in Ameeroonnissa Khatoon v. Meer Mahomed Mozuffur Hossein Chowdhry 20 W.R. 280; in Ram Ghulam v. Hazaru Kuar 7 A. 547; in Nimba Harishet v. Sitaram Paraji 9 B. 458; in Arundadhi Ammyar v. Natesha Ayyar 5 M. 391; and in Kuriyali v. Mayan 7 M. 255, Similarly, in Rahman Khan Samoji Sahib v. Patcha Miyah 4 M. 285, it was held that the representatives of one of the defendants were parties to the suit, and any question raised by them relating to the execution of the decree should be heard and determined by the Court executing the decree and not by regular suit. It is true that a somewhat contrary view was taken in the case of Abdul Rahman v. Muhammad Yar 4 A. 190; and in that of Awadh Kuari v. Raktu Tiwari 6 A. 109; but those cases do not seem to have been fully argued, and the decisions are distinctly opposed to the proposition laid down by the Privy Council in Wahed All’s case.

12. In the case of Mulmantri v. Ashfak Ahmad 9 A. 605 the objection was preferred by the judgment-debtors who claimed the property in their own right, and not as the representatives of the obligor under the bond in which capacity they were sued. It was held, in accordance with the principle laid down in Wahed Ali’s case, that the question was one under Section 244 of the Code and that an appeal would lie.

13. On the other hand, it has been held in several cases in which the judgment-debtor claimed to be holding the property in trust, or on behalf of third parties who were not before the Court, that the order made was final, and could only be contested in a regular suit. Some of these oases were almost on all fours with the present. In Nimaye Churn Puteetundee v. Jogendro Nath Banerjee 21 W.R. 365, in Shankar Dial v. Amir Haidar 2 A. 752, and in Nath Mal Das v. Tajammul Hussain 7 A. 36, the objection was that the judgment-debtor was holding the property on account of an endowment. In Bahori Lal v. Gauri Sahai 8 A. 626 the objection seems to have been made by a person who was no party to the suit; and it was held that the mere fact that her legal representative was also the representative of the judgment debtor was not sufficient to bring the case within Section 244.

14. In the present case, the judgment-debtor claims to hold the property which is sought to be attached as a trustee for third parties, and, following the decisions already referred to we are of opinion that the decision of the Subordinate Judge that he was so holding the property was a decision under Section 280 and not under Section 244. That being so, we think that under Section 283 no appeal lies against that decision.

15. These appeals are accordingly dismissed with costs.

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