JUDGMENT

Mackney, J - This is an application to revise an order of the District Court of Toungoo, passed in Civil Miscellaneous. Case No. 6 of 1933, where the present respondents, Mahomed and Haji Ahmed, sons of Haji Vally Mahomed Abba, applied for the removal of the attachment, of a rubber estate which had been effected by the present applicants, Vednath Singh and Janaki Devi, in Civil Execution No. 58 of 1932 of the District Court. The applicants were endeavouring to execute a decree obtained by their father, Baijnath Singh, against the aforesaid Abba in original Suit No. 80 of 1928 of the High Court of Judicature at Rangoon. The respondents maintained that they were in possession of the rubber estate in their own right, whereas the applicants maintained that they were in possession purely on account of the judgment-debtor, namely Abba, their father. The learned District Judge declined to investigate the title of the respondents. He found that they were in possession of the rubber estate, and he held that he could not go into the question whether they came into possession by fraud or benami. The applicants' contention in this Court is that the learned District Judge, in refusing to go into the question of the title of the respondents, has failed to exercise a jurisdiction vested in him by law. Actually, in the very suit out of which this execution case arose the matter of the transfer of the rubber estate to the respondents by their father had been in issue and had been decided in Baijnath Singh's favour. The finding had been upheld on appeal, (Civil First Appeal No. 211 of 1929), but in that suit the respondents were not parties. The applicants, in the Miscellaneous Case out of which the present application arises, had endeavoured to put in evidence the judgments of this Court on the original side and on appeal, but the learned District Judge had refused to admit them in evidence. This refusal forms a further ground for the application for revision. The applicants say that in refusing to admit this evidence the lower Court acted with material irregularity. The order of the District Court was passed on 14th October 1933. The applicants still have open to them the remedy provided in Order 21, Rule 63, Civil P.C. In S.R.M.M.A. Firm v. Maung Po Saung A.I.R. 1929 Rang. 297 (at p. 469 of 7 Rang.) it is said:

The High Court in both Upper and Lower Burma has repeatedly said that it does not ordinarily interfere in revision with orders made under Order 21, Rule 63, because such orders are by the rule itself declared to be conclusive and the rule itself provides a remedy by way of suit for the person against whom such an order is made.

2. That the learned District Judge was wrong in holding that he could not go into the question of title, there can be no doubt. Form the outset the present applicants had maintained that the respondents were in possession on behalf of their father. Rule 60, Order 21, provides that:

Where upon the said investigation the Court is satisfied that for the reason stated in the claim or objection such property was not, when attached, in the possession of the judgment-debtor or of some person in trust for him...the Court shall....

3. This makes it clear that if a claim is made that the persons in possession are only in possession on behalf of the judgment-debtor, the Court should investigate the claim. In refusing to make this investigation the District Court has undoubtedly failed to exercise a jurisdiction vested in it by law. The learned District Judge has, it seems to me, been misled by placing reliance on unauthorized reports of decisions of this and other High Courts: see Najimunnessa Bibi v. Nacharuddin Sardar :

Rules 60 and 61 provides them for a summary investigation into possession as distinct from a thorough trial of ultimate right. It is impossible to seperate altogether the question of possession and of title. Thus, if the judgment-debtor was in possession, he may have been in possession as agent or tru