CHOUDHRI Vs. RAM SARAN DAS
LAWS(HPH)-1952-8-2
HIGH COURT OF HIMACHAL PRADESH
Decided on August 26,1952

CHOUDHRI Appellant
VERSUS
RAM SARAN DAS Respondents

JUDGEMENT

Chowdhry, J.C. - (1.) This is an application by one Choudhri to revise the order of the Senior Subordinate Judge Mahasu, dated 30-11-1951, dismissing his objection under Order 21, Rule 58, Civil P. C., against the attachment of certain land in execution of the decree of Ram Saran against Dharam Das.
(2.) The attachment was made on 28-10-1950 and the objector laid claim to the property under a sale-deed dated 25-1-1950. The Subordinate Judge dismissed the objection on the findings that the objector was not in possession of the attached property, and that the sale-deed in question passed no title to him. He also overruled the objector's contention that the property had not been validly attached. Choudhri vs. Ram Saran Das and Anr. (26.08.1952 - HPHC) Page 1 of 2
(3.) It was strenuously contended by the learned counsel for the objectorpetitioner that this is a fit case for interference by this Court, because the learned Subordinate Judge has, acted with material irregularity in exercise of his jurisdiction in going into the question of title. A number of rulings were cited by him in support of his contention, but I do not deem it necessary to consider them. The petitioner's claim has been disallowed under Rule 61. The relevant portion of that rule applicable in the present case required a finding that the property was at the time of attachment in the possession of the judgmentdebtor as his own property and not on account of any other person. It follows, therefore, that it would not have sufficed for the Court merely to hold that it was in possession of the judgment-debtor, but it was further necessary for it to hold that the judgment-debtor was in possession of the property as his own and not on account of any other person. While, therefore possession is no doubt the main question for determination, the question of title may have to be gone into in order to ascertain that the nature of the possession was such as contemplated by the rule, i.e., possession of the judgment-debtor as his own property and not on account of any other person. So long therefore as the Court deciding the objection has complied with the above provision, even though in doing so he may have arrived at erroneous findings, it cannot be said to have acted with material irregularity in the exercise of its jurisdiction, and there would therefore be no ground for interference by this Court in revision. There is nothing in the rule in question debarring the Court deciding an objection under Order 21, Rule 58, Civil P. C., from going into the question of title, provided it does so only incidentally for determining the main question of possession. Indeed, the true nature of possession contemplated by Rule 61 may not in certain cases be capable of determination without going into the question of title also. Nor would any party be prejudiced thereby for the question of title being only incidentally, arid not directly and substantially, in issue, any decision on that question would not operate as 'res judicata' in any future proceedings between the parties. I find support for this view in -- 'Sm. Chunni Debi v. Sm. Annapurna Dai', AIR 1944 Pat 242.;


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