1. We are invited in this rule to set aside an order by which the Court below has disallowed a claim under R. 61, O. 21 of the CPC. The case for the petitioner is that at the time the disputed properties were attached by the opposite party as the properties of his judgment-debtor, the petitioner was in possession thereof as shebait of the idol Katakeswar Sheva. The Court below has held that the claim must be disallowed as the petitioner had failed to prove that he had interest in the disputed property as shebait, and in this view the Court has declined to enter into the question of possession of the judgment-debtor at the date of attachment. In our opinion the Court below has taken an erroneous view of the scope of R. 59. That rule provides that the claimant must adduce evidence to show that at the date of attachment he had some interest in or was possessed of the property attached. This dose not mean that if the claimant establishes that he has some interest in the property he is entitled to succeed irrespective of the question of possession; nor does it imply that if he fails to establish the particular interest he sets up, his claim must be disallowed irrespective of the question of possession of the judgment-debtor. As was pointed out by this Court in the case of Mohunt Bhagwan Ramanuj Das…Claimant, v. Khetter Moni Dassi…Decree-Holder; . [1897] 1 C.W.N 617., with reference to S. 279 of the Code of 1882, the words “some interest” mean such an interest as would render the possession of the judgment-debtor possession not on his own account but on account of or in trust for some other person.
2. This view is in accord with that taken in the case of Sabhapathi Chetti v. Narayanasami Chetti . [1902] 25 Mad. 555. The Code of 1908 has not, in this respect, altered the pre-existing law. R. 60 describes the circumstances under which a property under attachment may be released, and R. 61 similarly specifies the circumstances under which the claim to the attached property may be disallowed. In each of the cases mentioned in Rr. 60 and 61 the Court must determine the question of possession of the judgment-debtor.
3. The Court cannot found its decision on the question of the validity of the claim or the determination of the title to the property attached: Hamid v. Buktear . [1887] 14 Cal. 617.; Sheoraj v. Gopal . [1891] 18 Cal. 290., and Monmohiney Dassee v. Radha Kristo Dass* . [1902] 29 Cal. 543.. The Court below has thus refused to determine the one question it was competent to decide, namely, the question of possession, and has on the other hand determined the question it was not competent to investigate, namely, the question of title. The order made by it under R. 61 cannot consequently be supported.
4. The result is that this rule is made absolute, the order of the Court below set aside and the case remanded to that Court in order that the application may be reheard. The petitioner is entitled to his costs in this Court. We assess the hearing fee at two gold mohurs.
V.B/R.K
5. Rule made absolute.