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Kaisar Zamani Begam Vs. Shiam Sundar Lal - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All143
AppellantKaisar Zamani Begam
RespondentShiam Sundar Lal
Excerpt:
civil procedure code, section 583 - execution if decree--restitution of property sold in execution of a decree reversed in appeal--procedure. - .....in her and was not liable to be sold in execution of the decree. the objection was allowed and the decree-holder instituted a suit for a declaration that the property was liable to sale in execution of the decree. the court of first instance decreed this suit and the decree-holder proceeded to sell and did sell the property. the defendant, however, appealed, and on appeal the decree of the court of first instance was set aside, and the respondent in this suit established her right to the property. she now seeks to be restored to the property, which admittedly was sold in execution of the decree of the court of first instance which has been set aside on appeal. the learned subordinate judge has treated the application as one made strictly under the provisions of section 583 of the code of.....
Judgment:

Knox and Richards, JJ.

1. In this case the appellant as representative of one Muhammad Husain had a decree originally obtained against one Lalji Mal. Certain property was attached and directed to be sold. The present respondent objected that the property had become vested in her and was not liable to be sold in execution of the decree. The objection was allowed and the decree-holder instituted a suit for a declaration that the property was liable to sale in execution of the decree. The Court of first instance decreed this suit and the decree-holder proceeded to sell and did sell the property. The defendant, however, appealed, and on appeal the decree of the Court of first instance was set aside, and the respondent in this suit established her right to the property. She now seeks to be restored to the property, which admittedly was sold in execution of the decree of the Court of first instance which has been set aside on appeal. The learned Subordinate Judge has treated the application as one made strictly under the provisions of Section 583 of the Code of Civil Procedure and has decided that the application was properly made under the provisions of that section. The appellant, however, contends that that section cannot apply to a decree which was merely declaratory in its nature and not capable of execution. The respondent's counsel on the other side relies on the inherent jurisdiction of the Court to restore a party to the position he occupied before that position was lost in execution of a decree of Court subsequently set aside. We consider that, whether the order appealed from could be made under the provisions of Section 583 or by virtue of the Court's inherent jurisdiction, the order was a right and proper order and that the respondent is entitled to be restored to the property sold in execution of the decree. The principle involved was discussed in the case of Radhey Singh v. Mangni Ram (1902) 6 C.W.N., 710. In the course of the judgment, after referring to the authorities, the following passage occurs:

2. 'The principle on which the Courts have proceeded is that when there has been a wrong done by an order of a Court passed, which has been set aside on appeal, the Court executing the final decree, without express authority of law, is competent to put the parties into the position that they occupied before that order.' We consider that this principle is applicable to the present case, and that it, is absurd almost to contend that the respondent ought now to bring a fresh suit for possession of the property which she seeks to be restored, which would be a suit completely parallel to that which has already been brought by the decree-holder. We dismiss the appeal with costs.


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