1. This is an application against the order of the Munsif, dated 10th May, 1920, disallowing the claim of the petitioner under O. 21, R. 58, to the property attached in execution of the decree of the opposite party. The Court dismissed the claim, holding that the petitioner got the property from her husband by way of inheritance and consequently she cannot claim entire interest in the property to the exclusion of her eon, the judgment-debtor, and as the property attached is only six annas share the claimant's interest is not affected by the attachment.
2. It is contended that the above finding of the Court was not sufficient to dispose of the claim case lodged by the petitioner, inasmuch as it was incumbent upon the Court to determine as to whether the property was in the possession of the judgment-debtor or the claimant, and if the Court found that the property was not in the possession of the latter, the claimant, then the claim should have been allowed.
3. It is also said that the finding of right or title to the property does not dispose of the claim under the said order.
4. In support of this the learned counsel has relied upon the case of Monmohiney Dassee v. Radha Kristo Dass(1) and contends that the order of the Munsif disallowing the claim was not without jurisdiction although it did not determine the question of possession. In that case the authority of the order passed under the corresponding Section 278 of the old CPC, was challenged by the person against whom the order was passed as well as by another person who was not a party to the claim case in a suit brought by the purchaser of the property for the recovery thereof from the aforesaid persons. It was there held that the order passed disallowing the claim was not without jurisdiction and was conclusive between the parties.
5. The ratio decidendi of the case was, that the Court in the claim case based its decision not only upon the finding of possession but upon the finding of any interest in the property. In the case of Rajani Kanta Pal v. Kedar Nath Biswas(2) the objection to the claim preferred by the purchaser of a holding to the attachment and sale of the property in execution of a rent-decree obtained by the landlord on the ground that the decree was a money decree and that the interest of the judgment-debtor having passed to the claimant the landlord was not entitled to attach it, was, overruled by the Court holding that the claim, although preferred under Section 47 of the CPC, was in fact one under O. 21, R. 58 and the Court dismissed it by virtue of Section 170 of the Ben. Ten. Act. The High Court of Calcutta (Teunon and Cuming, JJ.), refused to interfere in revision on the ground that, although the Subordinate Judge committed an error of law in holding that the application came under O. 21, R. 58, yet the petitioner had other remedies.
6. In the case of Maung San Ba v. Maung Lun Bye(3), the Burma Court declined to interfere in revision with the order releasing the property from attachment holding that the property was in the possession of the claimant. The ground urged for revision was that the Court'had not applied its mind to the consideration of the provisions of Section 110 of the Evidence Act, and had not considered the evidence produced. This was held to be not a sufficient ground for interference. This case does not help the opposite party, inasmuch as the Court's decision was based upon the finding of possession. The same remark applies to the case of Bhairon…Decree-Holder…Applicant; v. Mt. Rajania…Objector…Opposite Party.(4)
7. In none of the authorities relied upon by the opposite party the question was directly raised as to whether, in a claim based entirely upon possession, the order of the Court disallowing the claim without any finding as to possession is valid or not. This question was answered in the negative in the case relied upon by the learned counsel for the petitioner, namely, Monmohini Dassee v. Radha Kristo Dass.
8. In the present case the petitioner claimed not only interest in the property but also possession of the entire property. The Court held that she had some interest but not the entire interest. It did not find as to what was her interest exactly in the property and whether it covered the share wholly or partly claimed by the petitioner, namely, six annas. It did not come to any finding as to whether the claimant or the judgment-debtor was in possession of the six annas attached. The order was clearly wrong under Rr. 60 and 61, O. 21.
9. The question then is, whether this Court is competent in revision to interfere with the aforesaid illegal order. Mr. Shambhu Saran contends that the Court has no power; Mr. Akbari strenuously resists this contention. The lower Court, no doubt, had jurisdiction to entertain the claim preferred by the petitioner and also to disallow or to allow it, but in the exercise of that jurisdiction it committed material irregularity in not coming to the finding of possession upon which alone its order disallowing the claim could be supported. In this view this Court has jurisdiction to set aside the order and remand the case to the Munsif to dispose of the application in accordance with law. The fact that the losing party has other remedy, namely, of instituting a suit, does not, in my opinion, relieve the lower Court from exercising jurisdiction properly, legally and regularly. The claimant has a right to get her redress under O. 21, R. 58, if she establishes her interest and possession in the property attached and there is no reason why this should be disallowed simply because the Court has jurisdiction to disallow or allow the claim, when the Court has not come to a definite finding upon which alone its order rejecting the claim could be sustained.
10. The result is that I allow this application and remand the case to the Munsif for determination in accordance with law. It will be open to the parties to adduce such evidence as they can.
11. The costs of remand will abide the result. Hearing fee one gold mohur.
V.S/R.K
12. Appeal allowed.