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Aulia Bibi and ors. Vs. Abu Jafar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1899)ILR21All405
AppellantAulia Bibi and ors.
RespondentAbu Jafar
Excerpt:
civil procedure code, sections 273, 268 - execution of decree--attachment--decree of revenue court not capable of attachment and sale under section 273 in execution of a civil court decree. - .....the decree of a revenue court did not fall within the provisions of section 273 of the code of civil procedure. he accordingly upheld the objection which had been addressed to him that the decree could not be attached and sold by, the civil court at all, and discharged an injunction which he had addressed to the revenue court of jaunpur. the learned counsel for the appellants asks us to hold that a decree of a revenue court is liable to attachment and sale under the provisions of the code of civil procedure, on the ground that the words in section 273, namely, a ' decree for money passed by any other court ' are wide enough to include decrees of revenue courts. we are unable to follow him in this contention. the definition given to the word 'decree' in section 2 of the code of civil.....
Judgment:

Knox and Aikman, JJ.

1. The question with which we have to deal in this appeal is whether a decree of a Revenue Court is property which is liable to attachment and sale in execution of a decree of a Civil Court. The Subordinate Judge of Jaunpur relying on the precedent in the ease of Onkar Singh v. Bhup Singh (1894) I.L.R. 16 All, 496, held that the decree of a Revenue Court did not fall within the provisions of Section 273 of the Code of Civil Procedure. He accordingly upheld the objection which had been addressed to him that the decree could not be attached and sold by, the Civil Court at all, and discharged an injunction which he had addressed to the Revenue Court of Jaunpur. The learned Counsel for the appellants asks us to hold that a decree of a Revenue Court is liable to attachment and sale under the provisions of the Code of Civil Procedure, on the ground that the words in Section 273, namely, a ' decree for money passed by any other Court ' are wide enough to include decrees of Revenue Courts. We are unable to follow him in this contention. The definition given to the word 'decree' in Section 2 of the Code of Civil Procedure is one which directs that subject to anything repugnant in the subject or context, the word 'decree' in the Code means the formal ex-pression of an adjudication upon any right, claim, or defence setupina Civil Court. It is noticeable that in the corresponding definition in Act No. X of 1877, the word 'civil,' which is introduced in the Act of 1882, found no place. There is nothing in Section 273 repugnant in the subject or context to the definition of 'decree' in Section 2 of the Code of Civil Procedure, and it must, therefore, be read as it stands into that section. The learned Counsel, however, argued that it did not follow that if Section 273 did not apply, decrees of the Revenue Courts were exempted from the general provision under which property was liable to attachment and sale. He relied upon the provisions of Section 266, and contended that decrees of the Revenue Courts were certainly covered either by the word 'debt' or by the words 'all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which or the profits of which he has a disposing power which be may exercise for his own benefit,' In this view he is certainly supported by the precedent in the case of Prince Gholam Mohamed v. Indra Chand Jahuri (1871) 7 B.L.R. 318, in which it was held that a decree of a Court falls within the description of 'other property.' The argument in reply for the other side to the effect that had the Legislature intended decrees to be property liable to attachment and sale it would certainly have mentioned them, in Section 266, is met at once by the observation that the provisions of Section 273 and of similar sections leave no doubt whatever but that it was intended that decrees should be liable to attachment. It was further argued that it had been held by this Court in Full Bench in the case of Takiya Began v. Siraj-ud-daula Weekly Notes, 1885, p. 123, and in an early case Sultan Kuar v. Gulzari Lal (1879) I.L.R. 2 All. 290, that a decree for money could not be sold in execution. On looking into these cases we find that all that was held there was that as special provision had been made by Section 273 for dealing with decrees which had been attached in execution, such decrees could not be sold. We have, however, held that in this case Section 273 does not apply, and therefore the ratio decidendi of the cases relied on has no application here. The learned Counsel for the appellants asks us to treat the decree as if it fell within the provisions of Section 272. This section would have been applicable had the decree of the Revenue Court been executed and the proceeds deposited in Court. So far as we know, matters have not reached this stage. The decree, while still a decree, appears to us to stand in the position of an ordinary debt, to be dealt with under the provisions of Section 268 of the Code of Civil Procedure. We decree this appeal, set aside the decree of the Court below, and remand the case to the Court below with directions to restore the application for execution to the file of pending applications, and to deal with it according to law. The appellants will have the costs of this appeal. The costs of the first Court will abide the result.


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