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Girdhari Lal and anr. Vs. Khushali Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad
Decided On
Judge
Reported in(1909)ILR31All364; 1Ind.Cas.744
AppellantGirdhari Lal and anr.
RespondentKhushali Ram and anr.
Excerpt:
code of civil procedure (act xiv of 1882), sections 244 and 583 - decree ex parte--sale under--decree set aside--second decree satisfied--suit for possession by judgment-debtor not barred. - - on the 10th of august 1904, a second decree for sale was passed but before this sale was carried out a puisne incumbrancer paid off the amount of the decree obtained by khushali ram and thereby satisfied his decree. notwithstanding, however, that his mortgage was satisfied he remained in possession and the suit out of which the present appeal has been preferred was then brought by the representatives of the mortgagors to recover, possession of the mortgaged property. so soon as the decree of khushali bam was satisfied by payment of his debt by a puisne incumbrancer he ceases to have any interest..........which had passed into the hands of an auction-purchaser under a sale in execution of an ex parte decree which was subsequently set aside. the property in dispute belonged to one tori singh who left him surviving his widow, his sister-in-law, and a minor son named chait singh. these relatives were recorded as owners upon his death. in 1883 the widow and sister-in-law purporting to act for themselves, and also as guardian of the minor chait singh, mortgaged the share in question to the respondent khushali ram. a suit for sale was brought on this mortgage and on the 23rd of july 1895, an ex parte decree for sale was passed and in execution of this decree, the property was sold and purchased by khugali ram on the 20th of december 1897. chait singh then applied to have the ea parte.....
Judgment:

John Stanley, Kt., C.J. and Banerji, J.

1. This appeal arises out of a suit for possession of property which had passed into the hands of an auction-purchaser under a sale in execution of an ex parte decree which was subsequently set aside. The property in dispute belonged to one Tori Singh who left him surviving his widow, his sister-in-law, and a minor son named Chait Singh. These relatives were recorded as owners upon his death. In 1883 the widow and sister-in-law purporting to act for themselves, and also as guardian of the minor Chait Singh, mortgaged the share in question to the respondent Khushali Ram. A suit for sale was brought on this mortgage and on the 23rd of July 1895, an ex parte decree for sale was passed and in execution of this decree, the property was sold and purchased by Khugali Ram on the 20th of December 1897. Chait Singh then applied to have the ea parte decree set aside and on the 9th of December 1899, his application was granted and the ex parte decree was set aside. In the meantime however Rhusali Ram had obtained possession of the property as auction-purchaser. On the 10th of August 1904, a second decree for sale was passed but before this sale was carried out a puisne incumbrancer paid off the amount of the decree obtained by Khushali Ram and thereby satisfied his decree. Khusali Ram on payment of the amount due to him ceased to have any claim or right to the mortgaged property. Notwithstanding, however, that his mortgage was satisfied he remained in possession and the suit out of which the present appeal has been preferred was then brought by the representatives of the mortgagors to recover, possession of the mortgaged property. The court below has dismissed the claim on two grounds, the first being that it is barred by Section 583 of the Code of Civil Procedure 1882, and the second that it is barred by the provisions of Section 244 of the same Code. Section 583 has obviously no application inasmuch as there was no decree by way of restitution or otherwise passed in an appeal. This section only applies to a case where a party is entitled to a benefit by way of restitution or otherwise under a decree passed in an appeal. As there was no decree passed in an appeal the section does not apply.

2. As regards Section 244 ill equally seems to us to have no application. So soon as the decree of Khushali Bam was satisfied by payment of his debt by a puisne incumbrancer he ceases to have any interest in the mortgaged property and his decree was satisfied. The question which was raised in this suit was not a question relating to the satisfaction, discharge, or execution of his decree; consequently this section does not bar the suit and the court below was in error in holding that it did.

3. For these reasons we must allow the appeal. We set aside the decree of the court below and inasmuch as the court below determined the suit upon a preliminary question, and we have overruled its decision upon that question, we remand the suit under the provisions of Order 41, Rule 23, to that court, with directions to rein-tate it in the file of pending suits under its original number, and dispose of it on the merit?.


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