1970 (1) TMI 86 - HC - Indian Laws

Summary

Issues Involved:
1. Legality and propriety of the attachment of the house.
2. Validity of the sale deed claimed by the objector.
3. Determination of possession at the time of attachment.
4. Scope of inquiry under Order 21, Rule 58, Civil Procedure Code (CPC).

Detailed Analysis:

1. Legality and Propriety of the Attachment of the House:
The decree-holder attached the house of the judgment-debtor on 23-2-1965 in execution of a decree passed on 19-12-1964. The judgment-debtor was in possession of the house when it was attached. The objector claimed ownership of the house based on a registered sale deed dated 11-1-1965 and objected to the attachment under Order 21, Rule 58, CPC. The Civil Judge initially ruled that the possession of the judgment-debtor at the time of attachment was irrelevant and raised the attachment. This order was challenged by the decree-holder, questioning its legality and propriety.

2. Validity of the Sale Deed Claimed by the Objector:
The objector asserted that the house was sold to him by the judgment-debtor on 11-1-1965, a month before the attachment. The decree-holder contested this claim, arguing that the sale deed was fraudulent and bogus, and thus, the objector could not acquire any legal title under such a transaction. Despite the sale deed indicating that possession was given to the objector on 11-1-1965, evidence showed that the house was attached from the possession of the judgment-debtor on 23-2-1965.

3. Determination of Possession at the Time of Attachment:
The court needed to determine whether the judgment-debtor was in possession of the house on his own account or in trust for the objector. The decree-holder argued that the sale transaction was fraudulent, and the possession of the judgment-debtor should be treated as his own. The court emphasized that possession at the time of attachment is crucial, and the objector must show evidence of interest or possession of the property when it was attached.

4. Scope of Inquiry under Order 21, Rule 58, CPC:
The inquiry under Order 21, Rule 58, CPC, is of a summary nature, focusing primarily on possession rather than title. The court cited precedents, including decisions from the Privy Council, Allahabad High Court, Madras High Court, and Calcutta High Court, which supported the view that the executing court's investigation should be based on possession and not delve into complicated questions of title. The inquiry is meant to be quick to allow the decree-holder to realize the fruits of the decree while protecting third parties from harassment.

The court concluded that the learned Civil Judge's observation that possession was irrelevant was erroneous. The judgment-debtor's possession should be considered his own, as there was no evidence showing that he held it in trust for the objector. The order of the trial court was set aside, and the application of the decree-holder was allowed, reaffirming the attachment of the house.

Conclusion:
The application was allowed, and the order of the trial court was set aside due to the erroneous approach regarding the relevance of possession. The judgment emphasized that the inquiry under Order 21, Rule 58, CPC, should be summary and based on possession, not title. The revision was allowed, and the attachment of the house was upheld.