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Mulmantri and anr. Vs. Ashfak Ahmad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All605
AppellantMulmantri and anr.
RespondentAshfak Ahmad and ors.
Excerpt:
execution of decree - decree passed against representative of debtor--attachment of property as belonging to debtor--objection to attachment, by judgment-debtor setting up an independent title--appeal from order disallowing objection--civil procedure code, sections 2, 244, 283. - - , 733, i find that they are, authorities which, to my mind, distinctly show that this was a matter which came within section 244 of the civil procedure code. the parties were clearly the same......from that decision. it is contended here that this being an adjudication under section 281 of the civil procedure code, section 283 applies, and there is no appeal. that preliminary objection is taken here by mr. abdul majid. three authorities have been cited by mr. abdul majid in support of his contention, namely, shankar dial v. amir haidar i. l. r., 2 all., 752, abdul rahman v. muhammad yar, i.l.r., 4 all., 190, and awadh kuari v. raktu tiwari i. l. r., 6 all., 109.2. as regards these authorities, i think i am right in saying as to the two first that there was, in the act under which they were decided, no definition of the word 'decree,' such as we find in the present code of civil procedure, act xiv of 1882. under the present code of civil procedure, an order determining any.....
Judgment:

John Edge, Kt., C.J.

1. There is a preliminary objection which we must dispose of. The plaintiffs obtained a money decree against certain persons who were the representatives of the debtor, and by that decree it was provided that the decree was to be enforced against the property which had belonged to the debtor. In executing that decree, the plaintiffs proposed to sell the property which the defendants-appellants here alleged was their own private property and had not come to them from the debtor, and that it was not the property which had been of the debtor within the meaning of the decree. The Court below decided against the defendants, and the appeal is brought here from that decision. It is contended here that this being an adjudication under Section 281 of the Civil Procedure Code, Section 283 applies, and there is no appeal. That preliminary objection is taken here by Mr. Abdul Majid. Three authorities have been cited by Mr. Abdul Majid in support of his contention, namely, Shankar Dial v. Amir Haidar I. L. R., 2 All., 752, Abdul Rahman v. Muhammad Yar, I.L.R., 4 All., 190, and Awadh Kuari v. Raktu Tiwari I. L. R., 6 All., 109.

2. As regards these authorities, I think I am right in saying as to the two first that there was, in the Act under which they were decided, no definition of the word 'decree,' such as we find in the present Code of Civil Procedure, Act XIV of 1882. Under the present Code of Civil Procedure, an order determining any question mentioned or referred to in Section 244, but not specified in Section 586, is a decree from which an appeal lies. If I am correct in saying that and I think I am, the two first authorities would be no authorities at all. As regards the third authority, Awadh Kuari v. Raktu Tiwari I. L. R., 6 All., 109, it would appear that in Act X of 1877, as amended by Act XII of 1879, under which the above case was decided, there was a corresponding clause, which made certain orders in the execution department decrees, and therefore appealable. But that definition does not appear to have been brought to the attention of the learned Judges who decided that case. As regards the other cases cited by Mr. Abdul Majid, i.e., that of Ram Ghulam v. Hazaru Kuar, I.L.R., 7 All., 547, and that of Sita Ram v. Bhagwan Das, I.L.R., 7 All., 733, I find that they are, authorities which, to my mind, distinctly show that this was a matter which came within Section 244 of the Civil Procedure Code. The decision in that matter was a decree, and appealable. I am bound to say that if there is a conflict of authorities on this matter, I prefer to follow the judgments in Ram Ghulam v. Hazaru Kuar I. L. R., 7 All, 547, and Sita Ram v. Bhagwan Das I. L. R., 7 All., 733. In addition to these cases, I think some light is thrown on the subject by the cases cited by Mr. Reid, namely, Chowdhry Waked Ali v. Musammat Jumaee, 11 B. L. R., 155; Ameer-con-nissa Khatoon v. Meer Mahomed, 20 W. R., 280; Kuriyali v. Mayan, I. L. R, 7 Mad., 255.

3. It appears to me that this was a case under Section 244 of the Civil Procedure Code. The parties were clearly the same. But Mr. Abdul Majid argues that the parties are not the same, because they are setting up a different title from that under which they were sued. But I think the only thing which the defendants have done is that they have alleged, rightly or wrongly, that the property is their own private property, and not the property which came within the scope of the decree. Under these circumstances, I am of opinion that the case falls within Section 244 of the Civil Procedure Code and that an appeal lies.

Brodhurst, J.

4. I concur with that view.

5. The appeal was then heard, and the following issues were remitted to the Court of First Instance, under Section 566 of the Civil Procedure Code:

1. Was the deed spoken of as the tamliknama executed for the purposes of defrauding creditors, or did it effect a bond fide transfer in favour of the appellants?

2. Was the house under attachment held by the appellant Rai Roshan Lal in his own right under the deed, or did he inherit it from his father?

3. Did the deceased, Rai Chadammi Lal, retain, after the execution of the deed, any interest which could he attached in execution of a decree against him, or against his representatives after his death?

6. Upon the return of the findings upon these issues, the appeal again came before Edge, C.J., and Brodhurst, J., and was dismissed with costs.


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