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Bansi Dhar and ors. Vs. Ali Ahmad Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1909)ILR31All367
AppellantBansi Dhar and ors.
RespondentAli Ahmad Khan
Excerpt:
code of civil procedure (act xiv of 1882) sections 278 and 283 - execution of decree--attachment--objection allowed--suit by decree-holder decreed--previous attachment whether subsisting. - .....then instituted a suit under section 283 and obtained a decree in june 1899, declaring that the attached property be brought to sale in execution of their decree. on the 18th january 1901, musammat mohan kuar, one of the judgment-debtors in the original decree, sold the property in suit to one bholanath. all ahmad the present appellant, then instituted a suit for and obtained a decree for pre-emption over the same property.3. the application out of which the appeal has immediately arisen, was instituted on the 18th may 1907, to bring to sale the property attached as far back as the 9th of january 1898. ali ahead objected saying inter alia that the property cannot be sold. his objections were dismissed by the court below and be now comes here in appeal. no argument was addressed to us.....
Judgment:

George Knox and Griffin, JJ.

1. This first appeal arises out of execution proceedings connected with a decree held by the respondents obtained by them on the 27th of May 1895 and confirmed by this Court on the 22nd of March 1897.

2. The respondents, in execution proceedings instituted on the 17th December 1897, attached certain properties with a portion of which we are concerned in the present application. On the objection of Gaud Sahai and Chadammi Lal, the properties with which we are concerned were released from attachment. The decree-holders then instituted a suit under Section 283 and obtained a decree in June 1899, declaring that the attached property be brought to sale in execution of their decree. On the 18th January 1901, Musammat Mohan Kuar, one of the judgment-debtors in the original decree, sold the property in suit to one Bholanath. All Ahmad the present appellant, then instituted a suit for and obtained a decree for pre-emption over the same property.

3. The application out of which the appeal has immediately arisen, was instituted on the 18th May 1907, to bring to sale the property attached as far back as the 9th of January 1898. Ali Ahead objected saying inter alia that the property cannot be sold. His objections were dismissed by the court below and be now comes here in appeal. No argument was addressed to us on the first ground contained in the memorandum of appeal. The second ground, viz, that the attachment of 1898 no longer subsists does not commend itself to us. It has been held by the Calcutta High Court in an exactly similar case Bonomali Rai v. Prosunno Narain Chowdhry and Muzaffar Shah (1896) I.L.R. 23 Calc. 829 following Mahomed Warria v. Pitambur Sen (1874) 21 W.R. 435 that the case in the Weekly Reporter was a clear authority for the view that 'the lien of the attaching creditor dated from the attachment and was not destroyed or affected by the order of release which was in effect set aside by the decree. This point was again considered and these cases were followed in Ram Chandra Marwari v. Mudeshwar Singh (1906) I.L.R. 33 Calc. 1158. This view is also consistent with that taken by the Bombay High Court in Lalu Mulji Thakar v. Kashi Bai (1886) I.L.R. 10 Bom. 400 and The Bank of Upper India v. Sheo Prasad and Ors. Weekly Notes 1897 p. 124. 'We would note at the same time that from the commencement and up to date there has been an unbrokon continuity in the efforts made by the decree-holder to obtain satisfaction of his decree. The original purchaser Bholanath purchased the property at a time when it was subject to an attachment order of a Civil Court and Ali Ahmad can hold no higher position.

4. This disposes of the remaining pleas taken in appeal. The appeal is dismissed with costs.


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