P.N.Mookerjee, J. - (1.) The appellant before us was defendant No. 1 in a suit under Order 21, Rule 63 of the Code of Civil Procedure. The suit has been decreed in part by the trial court and from the part decree the present appeal has been filed by the defendant No. 1 appellant.
(2.) The suit arose under the following circumstances :
(3.) In Money Suit No. 22 of 1948 of the Court of the Subordinate Judge of Berhampore, the plaintiff respondent, the Berhampore Bank Ltd. (now represented by the Court Liquidator as its Official Liquidator) claimed a sum of Rs. 73,420-10-3 from the appellant's husband Syed Sakhawat Hossain (who is respondent No. 2 in this appeal and who was defendant No. 2 in the court below) and their son Syed Golam Kader and, on certain allegations, attached before judgment the disputed properties (which are set out in Schedules Ka and Kha of the present plaint). To that attachment, the appellant objected & filed a claim which was registered as Miscellaneous Case No. 33 of 1948) on the averment inter alia that the attached properties belonged to her and were in her possession in her own right at all relevant times. That claim was allowed by the court and the attached properties were directed to be released from attachment upon a finding of possession and prima facie title in favour of the appellant, the Court refusing to go into the question, raised by the respondent Bank that the appellant was the benamdar of her husband, to whom the suit properties belonged, upon the view that the question of benami could not be gone into in the claim proceeding, the Bank's remedy, if any, lying in a suit under Order 21, Rule 63 of the Code of Civil Procedure. Thereupon, the present suit was filed by the respondent Bank.;