JUDGMENT

Jai Lal, J. - In 1926 the decree-holder applied for the attachment of some land alleged to belong to the judgment-debtor. It appears that shortly before the application the land had been transferred by the judgment-debtor to another person and mutation effected in the revenue records accordingly. The decree-holder alleged that the real owner was the judgment-debtor and the transfer was a benami transaction effected in order to defeat the creditors. For some reason or other the proceedings dragged on till 1933. In 1933 the decree-holder again repeated his prayer to attach the land. The Senior Subordinate Judge has declined to attach the land on the ground that mutation has been effected in the revenue records in favour of a third person and therefore the title does not vest in the judgment-debtor. This order the Senior Subordinate Judge passed without any objection by the ostensible owner of the property, that is the person in whose name the land has now been mutated.

2. On this appeal, in my opinion, it is rightly contended that on the representation of and on the facts alleged by the decree-holder that the land be. longs to; the judgment-debtor the Court should have attached it leaving it to the person who might claim the the owner of the land to file objections under Order 21, Rule 58, Civil P.C. After such an objection the Court could have decided summarily as to which of the contending parties should file a suit under Order 21, Rule 63 The decree-holder, in my opinion, is under these circumstances, entitled an order of attachment and if he illegally attaches the property of a third person he incurs the risk of paying his costs and possibly his damages. That, in my opinion, is a sufficient guarantee against a frivolous application by the decree-holder.

3. Mr. Mehr Chand Mahajan, on behalf of the respondents, contends that it is a condition precedent to an order of attachment that the property in respect of which the order is passed belongs to the judgment-debtor. In my opinion, that is only partially true. The decree-holder must allege that the property that he seeks to attach in execution of his decree belongs to his judgment-debtor and prima facie at the time of ordering the attachment the Court ordinarily must accept the statement of the decree-holder and as I have already staled if the decree-holder makes a false statement intentionally be incurs certain penalties. It would be anamolous if at this stage in the absence of the real contending party the Court were to make an enquity as to the title to the property and thus anticipate proceedings under Order 21, Rule 58. This, in my opinion, was never intended by the law. There may be exceptional cases of obvious abuse of the process of the Court; I cannot hold this is one of such cases. I consequently accept the appear and setting aside the order of the Senior Subordinate Judge, direct him to attach the land at the instance of the decree-holder and leave it to those who claim to be interested in it to the exclusion of the judgment-debtor to object to the attachment as provided by law. Costs of this appeal shall abide result.