The main legal point established in the judgment is the competence of an assignee to institute a suit under Order XXI R.63 CPC and the burden of proof in establishing the right to the property.

1. This appeal is by the plaintiff whose suit under Order XXI R.63 CPC. has been dismissed by the Court below. The suit property belonged to the 3rd defendant in kanam right as per the kanam deed, Ext. Al, dated March 23,1942 in her sole name. In November 1955 it was attached by the 1st defendant in execution of the decree he obtained against the 2nd defendant who is the husband of the 3rd defendant. On January 12,1956, the 3rd defendant objected to the attachment denying the 2nd defendant any interest in the property; but it was dismissed by the execution Court on November 22,1956. In the meanwhile on March 14,1956, she had assigned the property to K. P. Ananthan Adiyodi, who, in his turn, assigned to the plaintiff on November 9,1956. The plaintiff did not intervene in the claim proceedings, but on March 15, 1957, instituted the present suit to establish her title to the property and to restrain the proceedings against it. The 1st defendant resisted the suit assarting the 2nd defendant to have acquired the property benami in the name of the 3rd defendant and denying the plaintiff's right to institute this suit. The Munsif, Kozhikode II decreed the suit, but on appeal the Subordinate Judge, Kozhikode, has reversed him and dismissed the suit. Hence this second appeal.

2. In supporting the decree of the Court below, counsel for the 1st defendant contended that the plaintiff, who was no party to the claim proceedings but is an assignee pending those proceedings, is not entitled to institute this suit to get rid of the order therein. Order XXI R.63 CPC. reads:

"Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute,..."

and S.146 CPC. allows:

"Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him."

Under this Section, if A could have instituted a suit any person claiming the subject-matter of the suit under A can also institute that suit. It is urged that Order XXI R.63 C. P. C. allows a suit only by "the party against whom an order is made" in the claim proceedings. The opening words of the S.146 C. P. C. "Save as other wise provided by this Code or by any law for the time being in force" connote a rule inconsistent with the provision in the section which allows an assignee to sue instead of his assignor. There is nothing in Order XXI R.63 C. P. C. that prohibits institution of suits adumbrated therein by persons claiming the property under the person against whom a claim order has been made. As the right contemplated in Order XXI R.63 CPC. relates to property, which is normally assignable, reason can only be to allow assignees and successors to sue as their assignors or predecessors could have done. The identical question arose in Ganesh Prasad v. Kashi Nath Tiwari (ILR. 26 Allahabad 89). After an objection to attachment was dismissed by the executing Court, the objector assingned the property to a third person, who, even after a court-sale took place in pursuance of the attachment, instituted a suit under S.283 (present Order XXI R.63) of the Code of Civil Procedure. The District Judge, holding his purchase to be affected by S.52 of the Transfer of Property Act, held him disentitled to sue. Aikman J. reversed it, observing:

..."the dismissal of his objection did not by any means finally determine that the house was not his. He had a right of suit under S.283 of the Code of Civil Procedure. It cannot be contended that the right of suit given by that section is a personal right of the particular claimant whose objection has been dismissed under S.278. If this were the case, the death of a claimant whose objection had been so dismissed might finally put an end to a claim to valuable property. If a