il Appeal No 329 of 1962
Appeal from the judgment and decree dated September 26 1957 of the High Court in Appeal from Original Decree No 253 of 1949
656 Sarjoo Prasad and RC Prasad for the appellants
AV Viswanatha Sastri and D Goburdhun
for respondents nos
1 to 4 and 6
The Judgment of the Court was delivered by Sarkar J
This appeal arises out of a suit brought by the appellants in 1947 for a declaration that the defendants first party had acquired no right or title to a property under certain deeds and that the deeds were inoperative and void
The suit was decreed by the trial Court but on appeal by the defendants first party to the High Court at Patna that decree was set aside
The High Court having granted a certificate of fitness the appellants have brought the present appeal
The defendants first party have alone contested the appeal and will be referred to as the respondents
The High Court held that as the appellants were not in possession of the property at the date of the suit as found by the learned trial Judge and the respondents were their suit must fail under the proviso to s42 of the Specific Relief Act as the appellants had failed to ask for the further relief of recovery of possession from the respondents
In this view of the matter the High Court did not consider the merits of the case
The fact however was that at the date of the suit the property was under attachment by a magistrate under powers conferred by section 145 of the Code of Criminal Procedure and was not in the possession of any party
This fact was not noticed by the High Court but the reason why it escaped the High Court s attention does not appear on the record
The only point argued in this appeal was whether in view of the attachment the appellants could have in their suit asked for the relief for delivery of possession to them
If they could not the suit would not be hit by the proviso to section 42
The parties seem not to dispute that in the case of an attachment under section 146 of the Code as it stood before its amendment in 1955 a suit for a simple declaration of title without a prayer for delivery of possession is competent
The respondents contend that the position in the case of an attachment under section 145 of the Code is different and in such a case the magistrate holds possession for the party who is ultimately found by him to have been in possession when the first order under the section was made
It was said that a suit for declaration of title pending such an attachment is incompetent under the proviso to section 42 unless recovery of possession is also asked for
It appears that the attachment under section 145 in the present case is still continuing and no decision has yet been given in the proceeding s resulting in the attachment
In our view in a suit for declaration of title to property filed when it stands attached under section 145 of the Code it is not necessary to ask for the further relief of delivery of possession
The fact 657 if it be so that in the case of such an attachment the magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession is in our opinion irrelevant
On the question however whether the magistrate actually does so or not it is unnecessary to express any opinion in the present case
The authoritie s clearly show that where the defendant is not in possession and not in a position to deliver possession to the plaintiff it is not necessary for the plaintiff in a suit for a declaration of title to property to claim possession see Sunder Singh Mallah Singh Sanatan Dharm High School Trust vs Managing Committee Sunder Singh Mallah Singh Rajput High School1 Now it is obvious that in the present case the respondents were not in possession after the attachment and were not in a position to deliver possession to the appellants
The magistrate was in possession for whomsoever it does not matter and he was not of course a party to the suit
It is pertinent to observe that in Nawab Humayun Begam vs Nawab Shah Mohammad Khan2 it has been held that the further relief contemplated by the proviso to section 42 of the Specific Relief Act is relief against the defendant only
We may add that in K Sundaresa lyer vs Sarvajana Sowkiabil Virdhi Nidhi Ltd3 it was held that it was not necessary to ask for possession when property was in custodia legis
There is no doubt that property under attachment under section 145 of the Code is in custodia legis
These cases clearly establish that it was not necessary for the appellants to have asked for possession
In Dukkan Ram vs Ram Nanda Singh1 a contrary view appears to have been taken
The reason given for this view is that the declaratory decree in favour of the plaintiff would not be binding on the magistrate and he was free inspite of it to find that possession at the relevant time was with the defendant and deliver possession to him
With great respect to the learned Judge deciding that case the question is not whether a declaratory decree would be binding on the magistrate or not
The fact that it may not be binding would not affect the competence of the suit
The suit for a declaration without a claim for the relief for possession would still be competent in the view taken in the cases earlier referred to which is that it is not necessary to ask for the relief of delivery of possession where the defendant is not in possession and is not able to deliver possession which it is not disputed is the case when the property is under attachment under section 145 of the Code
We think that Dukkan Ram s4 case had not been correctly decided
We may add that no other case taking that view was brought to our notice
1 1937 LR 65 IA 106
2 AIR 1943 PC 94
3 ILR 4 AIR 1961 Pat
658 For these reasons we hold that the suit out of which this appeal has arisen was competent
We therefore allow the appeal but as the merits of the case had not been gone into by the High Court the matter must go back to that Court for decision on the merits
The appellant will get the costs here and below
Appeal allowed and case remanded


Summary:
There was dispute about the property in suit between theappellants and the respondents
The property was attached by the Magistrate under section 145 of the Criminal Procedure Code
Subsequently the appellants filed a suit for declaration of their title to the property but made no prayer for the cansequential relief of possession
The suit was decreed by the trial court but the High Court set aside the decree on the ground that the suit was bad under section 42 of the Specific Relief Act for failure to sue for possession
Appeal to this Court was filed with certificate of fitness
HELD In a suit for declaration of title to property filed when it stands attached under section 145 of the Criminal Procedure Code it is not necessary to ask for the further relief of delivery of possession
The fact if it be so that in the case of such an attachment the Magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession is irrelevant
656H 657B Moreover the further relief contemplated by the proviso to section 42 of the Specific Relief Act is relief against the defendant only
In the present case the Magistrate was in possession and he was not a party to the suit
657C D Further it is not necessary to ask for possession when the property is in custodia legis
There is no doubt that property under attachment under section 145 of the Code is in custodia legis
657E3 Sunder Singh Mallah Singh Sanatan Dharam High School Trust vs Managing Committee Sunder Singh Mallah Singh Rajput High School 2937LR 65 IA 106 and Nawab Humayun Begum vs Nawab Shah Mohammad Khan AIR 1943 PC 94 relied on
K Sundarama Iyer vs Sarvajana Sowkiabil Virdhi Nidhi Ltd ILR  approved
Dukhan Ram vs Ram Nanda Singh AIR 1961 Pat
425 disapproved