- (1.) THIS is an appeal from the order dated 3-1-1952, passed by the learned Civil Judge of allahabad in which the dispute is about certain aeroscraps which were attached before judgment. The material facts are as follows :
(2.) ON 17-12-1947, the Calcutta National Bank Limited, which is the appellant before us, brought a suit for the recovery of Rs. 42,753/13/3 against one Qudratullah and his son, Rahmat Ali Fateh ullah. The latter is the respondent before us. The bank's case was that the father and the son were carrying on business jointly and while the father borrowed the money from the bank the son was a guarantor and both of them pledged the aero-scraps which they had bought from the Defence department. Along with the plaint, the bank filed an application for attachment before judgment. In the affidavit which was filed in support of the application it was alleged that the aeroscraps were the property of both the defendants. It was also alleged that the defendants were trying to dispose of their properties and were trying to remove them from the local limits of the jurisdiction of the court with a view to defeat or delay the execution of the decree that might be passed in the suit. An apprehension was also expressed that the defendants might leave the indian Dominion. Learned Civil Judge ordered notice to issue and directed that attachment be made in the meanwhile. The attachment was accordingly made. On 20-3-1948, Rahmat Ali Fateh ullah made an objection to the attachment and prayed that the attachment might be withdrawn. In the affidavit filed in support of the petition of objection, it was stated that it was absolutely wrong that he ever intended to abscond t)r leave the Indian Dominion or to dispose of his property in order to defeat or delay the realisation of the decree that might be passed. Further, it was alleged that he and Qudrat Ullah had separate business in oil, metal and other articles on a large scale and, in order to hamper the same, the attachment before judgment had been obtained on wrong and incorrect facts. It was seated that Qudrat Ullah had immovable property of the value of Rs. 70,000/- from which the amount of the plaintiff could be realised and he had nothing to do with the amount claimed. It WAS denied that he ever stood as a guaraptor. The objection of Fateh Ullah was dismissed by the learned Civil Judge on 10-12-1948. An appeal was filed against that order in this Court and that was also dismissed on 17-1-1949. No suit for a declaration of the title of Rahmat Ali Fateh Ullah in respect of the aeroscraps has been filed by him as contemplated by Order 21, Rule 63, Civil P. C. On 9-4-1949, learned Civil Judge' decreed the suit as against Qudrat Ullah only, but dismissed it as against Raomat Ali Fateh Ullah on the finding that he never stood as a guarantor for the advance of the loan to Qudrat Ullah. A first appeal against that decree (First Appeal No. 171 of 1949) has been filed by the bank and is pending in this Court. On 9-5-1949, the bank applied for the execution of the decree by the sale of the attached aeroscraps. On 18-8-1949, Rahmat Ali made an application that as the suit had been dismissed against him and the aeroscraps were his property they might be delivered to him. On 14-2-1950, Rahmat Ali filed an objection under Section 47, Civil P. C. , contending that the aeroscraps being his property and the suit having been dismissed against him they could not be sold in execution of the decree against his father, Qudrat Ullah. By the order, dated 3-1-1952, learned Civil Judge held that the aeroscraps in dispute were the property of Rahmat Ali Fateh ullah and as the suit against him had been dismissed he was entitled to get them back and they were not liable to be sold in execution of the decree against Qudrat Ullah. He directed accordingly. This order purports to dispose of both the application, dated 18-8-1949, and the objection under S, 47 dated 14-2-1950. This appeal has been filed by the bank against that order.
(3.) SRI Ambika Prasad, learned counsel for the appellant, contends firstly that as no suit for a declaration of title was brought by Rahmat Ali as contemplated by Order 21, Rule 63, Civil P. C. within a period of one year as prescribed by Article 11 of the First Schedule to the Limitation act, 1908, that order has become conclusive now and it was not open to the learned Civil Judge to determine that the aeroscraps were the property of Rahmat Ali Fateh Ullah.;