P.N. Mookerjee, J.@mdashThis appeal arises out of a proceeding which was started on an objection purporting to be under, Section 47 of the CPC although it was really a claim under Order XXI, Rule 58, of the Code.
2. The relevant facts lie within a short compass. A title suit was broiight by two persons Tarapada Nandan and Benoy Krishna Nandan and another against the present Respondent. That suit was dismissed on July 18, 1941, with costs against the present Respondent. The decree for costs obtained by the Respondent Sankar Prosad Dey was put into execution and in the course of such execution a compromise was arrived at between the parties on February 17, 1951. Under the compromise the costs were payable in certain instalments. There was default in the payment of these instalments and, accordingly, the present execution was taken out on June 20, 1952, against the judgment-debtors Tarapada Nandan and Benoy Krishna Nandan and certain properties were attached. Thereupon a petition was filed purporting, to be u/s 47 of the Code objecting to the attachment on the ground that half of the attached properties was in the possession of Tarapada and Benoy as shebaits of a certain deity and that the said moiety share belonged to the said deity. This objection was given effect to by the learned Munsif who directed release of one-half share of the property attached from attachment but on appeal by the decree-holder that decision was reversed. Against this appellate decision, the present second appeal has been filed by Tarapada.
3. The principal point which has been urged in support of this appeal is that the objection asserting the title and possession of deity to the moiety of the attached properties was really a claim under Order XXI, Rule 58, of the Code and that, accordingly, no: appeal lay from the decision of the learned Munsif to the court of the learned District Judge. In my opinion, that point must succeed. It is true that the objection was filed by the judgment debtors and purported to be u/s 47 of the CPC but having regard to the nature of the objection, viz., that title and possession was asserted in favour of the third party deity of whom the judgment-debtors claimed to be shebaits, it seems to me that it was really a claim under Order XXI, Rule 58, of the Code. That being so, the decision of the learned Munsif must be held to be one allowing a claim under Order XXI, Rule 58, of the Code releasing on the basis of that claim a moiety share of the attached properties. The appeal to the learned District Judge was, therefore, not maintainable in law. I am supported in this view by the Full Bench decision of this Court in the case of Kartick Chandra Ghose v. Ashutosh Dhara ILR (1911) Cal. 298 (F.B.) I, accordingly, hold that the appeal before the learned District Judge was not maintainable in law, and his decision, therefore, cannot stand.
4. As to the competency of the present second appeal it is not altogether free from difficulty that there are decisions of this Court which allow a second appeal when the lower appellate court has entertained an appeal which was not competent in law. In this connection I need refer only to the decision in the case of Wajuddi Pramanik v. Md. Balaki Moral (1924) 30 C.W.N. 63, which being a Bench decision, is binding upon me.
5. In the above view of the matter, I allow this appeal, set aside the judgment and order of the learned District Judge and restore that of the learned Munsif. Having regard to the circumstances of the case and in view of the fact that no preliminary objection to the maintainability of the appeal before the lower appellate court was taken, I direct that the parties will bear their own costs in this Court and in the court of appeal below.
6. The Respondent may, if so advised and if not otherwise barred, move against the learned Munsif''s decision in revision.
