be the agent of the person for whose benefit the process of the Court has issued; nor is such person responsible for the mistake or misconduct of the officer, unless he or his servants have personally interfered and directed the action of the officer. Doolar Chand Sahoo v. Ram Sahay Bhuggat, ib. XXIV. 139. Before a claim can be investigated, it is necessary to ascertain whether the proprietary title claimed by the intervenor arose through a right originating before or after the attachment made by the decree-holder. Bibi Sahib Jehan v. Syud Shah Asudoollah, S. W. R., V. Mis. 28. The title of the objector as compared with that of the debtor in possession is not a point for adjudication. Khelah C. Ghose v. B. C. Mukarji, ib. XIV. 144. The effect of the last sentence of this section is to exclude a party to an investigation under that section from any other remedy than that expressly provided for him by this section. Mad. H. C., III. 220. Where plaintiffs, the junior members of a family, sued for a declaration that a decree obtained against their ejaman was not binding on the family, they having previously unsuccessfully resisted an attachment under sec. 331: Held, that this section was not applicable to the suit, M. H. C., IV. 363. In a suit to set aside a summary award under this section, facts must be found on the evidence taken in the case, and not on any taken in the summary cause. Lekhraj Roy. v. Mutty Madhab Sen, S. W. R., XIV. 95. In order to establish a right of pre-emption on the part of a sharer, it is not necessary that the property sold should be actually separated or defined. Gobind Chunder Goopto v. Raj Kishore Sen, ib. 365. Where, notwithstanding that a claim under sec. 278 was rejected, the claimant, who was in possession, continued in possession until the execution proceedings were struck off for default and subsequently revived, and her property was sold under a second attachment: Held that the claimant was not bound to sue within one year of the order rejecting her claim, which in reality was no decision, Luckee Prem Debia v. Khyrullah Kazee, 367. Where the success of a party in summary proceedings under this sec. is grounded on his being in possession, that is a sufficient cause of action. Shumboo Chunder Surnokar v. Russick Chunder Chuny, ib. XV. 346. ib. Two several judgment-creditors attached certain property, which was released upon the claim of a third party. One of them sued the successful claimant, and obtained a decree declaring the property in dispute to belong to the judgment-debtor, and thereupon caused the property to be sold, and became the purchaser thereof. Thereupon an assignee of the other judgment-creditor sued him, alleging an earlier lien, and praying a sale in satisfaction thereof. The defence set up was, that as the plaintiff did not come into Court to set aside the order under sec. 278 within a year from the date thereof, he was barred from bringing the present suit. Held that the omission to bring a separate suit for that purpose did not bar him from obtaining a declaration of his prior lien. Chintamoni Sein v. Iswar Chandra, B. L. R., III. 122. (e) Where during auction sale of immoveable property, a judgment-creditor requested that the sale might be stayed as he had purchased the property from the judgment-debtor in part satisfaction of decree: Held, that it was discretionary with the Court to allow the sale to proceed. (f) From the wording of secs. 280-282 the Court functions appear to be limited to the question of possession, and they need not enter upon that of title. Should, then, an unsuccessful claimant not sue within the year to establish the right he claims in the property attached, is he afterwards thereby estopped from asserting his right as against all persons who were parties to the proceeding which resulted in the order, or who claim under them in virtue of a sale made in consequence of the attachment? A case which bears somewhat upon this question, and would seem to answer it in the negative, is that of Chintamoni Sein v. Iswur Chandra, B. L. R., III. 122. A. and B., two judgment-creditors, attached certain property which was released upon a claim preferred under sec. 278 by a third party, C. After this A. sued C., and, obtaining a decree which declared the property to be that of the judgmentdebtor, caused it to be sold, and became the purchaser. Thereupon an assignee of B. sued A,. alleging an earlier lien, and praying a sale in satisfaction thereof; A. took up the plea already noticed, viz., that B. had not come into Court within a year of the order under sec. 27. (see Limitation Act, 1877.). The Court overruled the plea, and held that the omission to bring a separate suit did not bar him from obtaining a declaration of his prior lien. In the case of Mathura Pandey v. Ram Rucha Tewari, B. Lz R., III. 113, Mr. Justice Mitter held that the words to estab lish his right went rather to show that the question to be tried was that of right of title, and not merely the question of possession. He further held that in suits brought under this section if every case for the establishment of title and confirmation of possession were to be as a matter of course dismissed, upon the ground that the plaintiff was not in possession on the date of the suit, and without any inquiry as to the title set up by him, irreparable mischief might be done. It may be said that the plaintiff, if he fail to prove the possession in which he seeks to be confirmed, he is himself to blame for having put forward a title which he cannot substantiate, and cannot reasonably complain if his suit is dismissed. But Civil Courts in this country, which "by their very constitution are Courts of equity and good conscience," ought not to deprive parties of their just rights merely by way of penalty, see Rani Surno Moyee v. Suttish Chandra Roy, Moore's I. A., X. 123, An unsuccessful claimant, in suing under this section, must sue substantially for the same right which he had claimed when he brought his claim under sec. 278. Colvin, Cowie & Co. v. Elias, B. L. R., II. 215. It is for the claimant, when he comes into Court under this section, to prove his title as in any other case. Thus, when in case of Mahima Chandra Kundu v. Maulvi Nur-ud-din, B. L. R., III. 70, the unsuccessful claimant was met by a plea that the sale under which he brought this claim was a benami one to defraud creditors, it was held that the burden of proof lay upon him to show his purchase was a good one. Suits under this section must be valued like any other suit to try title and establish right. Mufti Julaluddin Muhammad v, Shohorullah, B. L. R., XV. 1. There is no doubt that a plaint setting forth a prayer under this section cannot be entertained by Small Cause Conrts, see Moozdeen Gazee v. Dinoobundhoo, S-W. R. XII. 99. According to that ruling it matters not that the prayer of the plaint go further and ask that the value of the property be given; see also Ram Dhain Biswas v. Kefat Biswas., ib. X. 141. On the other hand, the Madras High Court, in Kundani Naimo Bachi Nadu v. R. Lachmi Patti, M. H. C. A., VIII. 86, that a suit may be brought to recover moveable property (sheep) or its value when it has been attached in satisfaction of a decree against a third party, and has been purchased at a Court sale. Should a Small Cause Court wrongly exercise jurisdiction in any case, the result of such error will not bar a suit to avoid sale, Lala Gundo Lal v. Habibulnissa, B. L. R., VII. 285, a case in which a S. C. C. granted a decree on a bond in which immoveable property was hypothecated. (9) The order for the release of property is made with reference only to the particular claimant who has obtained the order; it is not to be regarded as a general decision (of which all the world have the benefit) that the property does not belong to the judgment-debtor. Musst. Imam Bandee Begum v. Mirza Muhammad Taki Khan and others, S. W. R., VII. 27. can In computing the time for bringing a suit to set aside an order made under sec. 276 of the Code of Civil Procedure, the date upon which the order is signed, and not the date upon which it is verbally made, should be considered. Bapubin Ishvar v. Lakshuman Boji, Bom. H. C. R., X. 19. (h) Payments made under protest to protect rights and interests in land put up to sale are not voluntary, and a suit to cause their refund will be. Fatim Khatun v. Muhammad Jan Chaudhri, B. L. R., I. P. C. 21. Kali Ramzan Ali v. Maharaja Suraj Bhan, ib. VII. 403. A mortgagee claimed to remove an attachment placed by a judgment-creditor of the mortgagor, on the ground that the entire ownership of the property had passed to him at the date of attachment; he had never had possession of the property, and by the stipulations of the deed the mortgagor had a power of sale after the expiration of the time fixed for the payment of the debt, and it was only on the failure to exercise this power that the proprietary title would pass to the mortgagee. Held that, under a condition of this character, a reasonable time must be allowed for the exercise of the power of sale, and that the fact that no sale had taken place within an interval of 23 days from the date fixed for payment could not equitably be held to divest the mortga gor of the equity of redemption; that, consequently, at the time of attachment the defendant was only a mortgagee, and the suit to remove the attachment could not be maintained. Koer Mandher Mohajana Ambekur v. Naro Hari Dasputre, Bom. Rep., I. 167. Suit for redemption of an atti by an alleged purchaser of the same, and for recovery of land on which he had purchased a kanam. The defence was, that the purchase was made by the father of the first defendant, and that the plaintiff was constructively a mere trustee. The Munsiff decreed for the plaintiff, and the Principal Sadar Amin reversed his decree, because the suit was not brought within a year of release of the proper * See p. 183. + S 278. See p. 187. 281. (246.) If the Disallowance of claim to release of property attached. as Court is satisfied that the property was, at the time it was attached, in possession of the judgment-debtor his own property, and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him, the Court shall disallow the claim. 282. If the Court is satisfied that the property is subContinuance of attach- ject to a mortgage or lien in favour ment subject to claim of of some person not in possession, incumbrancer. and thinks fit to continue the attachment, it may do so, subject to such mortgage or lien. M. 283. (246, 247.) The party against whom an order under sections 280, 281, or 282, is passed, may institute a suit to establish theright which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive.* (h) M. 284. (242.) Any Court may order that any property which has been attached, orsuch portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same. Saving of suits to establish right to attached property. Power to order property attached to be sold, and proceeds be paid to person entitled. Property attached in execution of decrees of several Courts. M, 285. Where property not in the custody of any Court has been attached in execution of decrees of more Conrts than one, the Court which shall receive or realize such property and shall determine any claim† thereto and any objection to the attachment thereof shall be the Court of highest grade, or where there is no differrence in grade between such Courts, the Court under whose decree the property was first attached.‡ (i) G-Of Sale and Delivery of Property. and how made. M. 286. (248) Sales in execution of decrees shall be Sales by whom conducted conducted by‡ (1) an officer of the Court or by any other person whom the Court may appoint, and, except as provided in section 296, shall be made by public auction in manner hereinafter mentioned. (k) M. 287. (249.) When any property is ordered to be sold by public auction in execution of a Proclamation of sales by decree, the Court shall cause a proclamation of intended sale to be §Seo n. (b) 45. made in the languages of such Court. Such proclamation public auction. (Continued on page 188.) ty from attachment under a claim of the defendant, which attachment was made in execution of two decrees for money against the present plaintiff. It appeared that in the proceedings for releasing the property from attachment, no notice was issued to the judgment-debtor (present plaintiff). Held that the decision of the Principal Sadar Amin was wrong. In the present case the claimants in possession were not so according to any of the modes of direction which sec. 280 enumerates as authorizing the continuance of the possession and the dismissal of the claim. The possession was in the claimants, and there was nothing in the rights of the judgment-debtor which could make such possession his possession. This being so, even assuming that he was a party to the order made, such order could not be said to be against him; because his claim was one which could not have been determined by any order made under sec. 280. The order so made was perfectly consistent with his present contention. Cheriyarakel v. Vayaka Parambath M. H. C. R., VI. 416. Sec. 284 does not enable a Court to dispose of questions relating to claims to money attached: : see sec. 278 n. (d) A regular suit to set aside a summary order only lies where the power to bring it is expressly conferred. Sudaburt P. Sahoo v. Lutf Ali Khan; Musst. Phoolbas Koer v. Lall Singh, Bikramajee Lall v. Musst P. Koer; Ram Dhyan Koonwar v. Musst. Phoolbas Koer. S. W. R., XIV. pp. 339, 340. A Court ought not to order property belonging to ajudgment debtor to be attached in respect of a decree-holder who never applied to the Court to have his claim included among those for the repayment of which the judgment-debtor's property was attached. Kishen Komar Chaudhri v. Mir Nuzzuff Ali S. W. R., V. Mis. 21. Miscellaneous rulings on the subject of attachment. (i) When once legally made, an attachment is revived upon the reversal of the sale in execution. Gunnu Singh v. Baboo Mudhun Mohan Singh, S. W. R. 1864, 26. An attachment cannot subsist when the suit has been struck off for neglect to pay in the tulubana for the service of the necessary sale processes. Purbloo Doss v. Goma Bhujun Singh, S. W. R., V. Mis., 4. If the execution case be struck of the file, then the judgment-debtor is remitted to his former position of a simple judgment-creditor; he must begin de novo and attach again before a sale at his instance can take place. Baboo Luchmiput v, Babu Lekraj Roy, ib, VIII. 415. If property is once attached, the attachment will subsist, if not expressly abandoned by the party at whose suit it was issued, until an order is issued for its withdrawal, even although no further steps are taken on the attachment within a ressonable period. A mere striking the execution case off the file by the Court of its own motion, without notice to, or consent of parties, will not invalidate an attachment. Jhatu Sahu v. Baboo Rama Charan Lall III. B, L. R., App. 68. If, however, the second attachment is taken out merely because the Court insisted on the judgment-debtor's beginning de novo, then the first attachment remains in force notwithstanding the issue of the second. The striking off of a case from the file while pending in execution does not release a property from attachment. Sheikh Gulam Yabeya v. Musst. Sama Sundri Kuari, B. L. R., III. App, 134, S. C. S. W. R., XII. 142. Miscellaneous Rulings on Execution. When a proper application for process has debtors, he cannot proceed in execution on a mcre application to issue such notices over the parties who are bound to apply under section. 235 of Act X. of 1877. Purna Chandra Mookerjee v. arada Charan Roy, B. L. R., III. App., 21; S. C., S. W. R., XI. 241. Where a decree-holder has applied for execution and has proceeded up to a certain point in the execution, and then the execution proceedings are set aside in toto, the property cannot still be considered as under attachment for the bene fit of the decree-holde. Kadun Hossein Khan and others v. Kalee Parshad Singh and others, ib. VIII. 49. In a case in which the officers of a Munsifl's Court were unable to give a decree-holder possession of a house, because the judgment-debtor had bolted and locked the doors, the Munsiff is bound to remove the locks and to place the decreeholder in possession. Gunesh Chunder Shah v. Ram Dhinee Dassee ib, XVII 283, When a Court disallows a claim to attached property by reason of the claimant not having given evidence, or not having been present when it was his duty to appear and give evidence, the order made is one uuder 280. Tripoora Soondaree Debia v. Ijjutoonnissa Khatoon ib. 1875 XXIV v. 44. The order dismissing on default an intervenor's application is of equal force with a finding on the merits after investigation Lall Gondur Lal v. Hubbeeonissa ib. XV, 311. In such case the Court's order declaring All sums not exceeding Rs. 100 on ac- All sums received and retained by the nazir shall be shown in Register A. and C. All sums paid into the treasury shall be brought on the Judicial Deposit Register. These rules apply, mutatis mutandis to G.--Of Sale and Delivery of Property. Sales as a rule are to be by public auction, held by officer or person appointed by the Court. Prior to sale a proclamation by beat of drum on the spot, and by copy affixed at the Court-house, and, when considered necessary, by proclamation in the Local Gazette and newspaper, and in case of revenue-paying property, by a copy put up in the Collector's office, is essentially necessary. It must be in the language of the Court, and state time and place of sale; it shall also specify, as accurately as possible, the property, revenue assessed upon it, encumbrances, the amount due, and every thing material by which purchaser can judge of its nature and value. To ascertain the above matters any person can be summoned, examined, and required to produce documents in his power or possession. No public officer will be answerable for errors, unless made dishonestly. No sale can take place without written consent of judgment-debtor until thirty days in case of immoveable property, and fifteen days in the case of moveable, have elapsed from the fixing of the notification in the Court-house. Sales may be adjourned by selling officer for reason to be recorded, provided that, if sale be within Court precincts, leave of Court be obtained. They must be stopped on tender of debt and costs before lot be knocked down, or on proof of their payment into Court that ordered the sale. Officers in any way connected with sales must not bid for or acquire any interest in property sold. Defaulting purchasers are answerable for loss and all expenses attending re-sale, and such loss &c., at judgment-debtor's or creditor's instance can be recovered in the same way as a decree for money. Without Court's permission, decree-holder must not bid for or purchase the property, but, when permitted, his purchase-money may be set off against the amount due under the decree. Sale proceeds will under this Code be divided rateably among all decree-holders, who, prior to realisation, have applied to the Court for execution of unsatisfied decrees for money against judgment-debtor. Where the property is sold subject to any incumbrance, the incumbrancer is not entitled to share in any surplus, unless he agree to sell the property free from the encumbrance, when the Court can give him the same right against the surplus as he had against the property sold. Persons entitled to assets can compel persons not entitled to them to refund assets wrongly paid to them. Costs of realisation must be deducted prior to distribution, and it must be understood that Government rights are in no way affected by the above rules for distribution. Calcutta Rules for Sale. Every District Judge shall appoint a certain fixed day in each month on which, at hour to be named, all sales of immoveable property in execution of decrees in his own |