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Calcutta High Court
Satkari Madal vs Tirtha Narain Bhattacharjee on 7 April, 1914
Equivalent citations: 24 Ind Cas 62


JUDGMENT

1. We are invited in this Rule to set aside an order by which the Court below has disallowed a claim under Rule 61 of Order XXI of the Code of Civil Procedure. The case for the petitioner is that at the time the disputed properties were attached by the opposite party as the properties of his judgment-debtor, the petitioner was in possession thereof as shebait of the Idol Katakeswar Sheva The Court below has held that the claim must be disallowed as the petitioner had failed to prove that he had interest in the disputed property as shebait, and in this view the Court has declined to enter into the question of possession of the judgment-debtor at the date of attachment. In our opinion the Court below has taken an erroneous view of the scope of Rule 5.9. That rule provides that the claimant must adduce evidence to show that at the date of attachment he had some interest in of was possessed of the property attached. This does not mean that if the claimant establishes that he has some interest in the property he is entitled to succeed irrespective of the question of possession : nor does it imply that if he fails to establish the particular interest he sets up, his claim must be disallowed irrespective of the question of possession of the judgment-debtor As was pointed out by this Court in the case of Mohant Bhagwan Ramanuj Das v. Khetter Moni Dassi 1 C.W.N.. 617 at p (sic)., with reference to Section 279 of the Code of 1882, the words some interest” mean such an interest as would render the possession of the judgment-debtor possession not on his own account but on account of or in trust for some other person. This view is in accord with that taken in the case of. Sabhapathi Chetti v. Narayanasami Chetiti 25 ST 555 : (sic). The Code of 1908 has not, in this respect, altered the pre-existing law. Rule 60 describes the circumstances under which a property under attachment may be released and Rule 61 similarly specifies the circumstances under which the claim to the attached property may be disallowed. In each oi the cases mentioned in Rules 60 and 61 the Court must determine the question of possession of the judgment-debtor. The Court cannot found its decision on the question of the validity of the claim or the determination of the title to the property attached, [Hamid v. Buktear 14 C 617. : Shesraj v. Goyal 18 C. 290 : Monmohiney Dassee v. (sic) 29 C 543 :]. The Court below his(sic)fused to determine the (sic) question. it was competent to decide, namely, the question of possession, and has, on the other hand,. determined the question it : was not competent to investigate, namely, the question of title. The order made by it under Rule 61 cannot consequently be supported.

2. The result is that this Rule is made absolute, the order of the Court below set aside and the case remanded to that Court in order that the application may be re-heard. The petitioner is entitled to his costs in this Court. We assess the hearing fee at two gold mohurs.


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