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Sunder Singh and ors. Vs. Ghasi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1896)ILR18All410
AppellantSunder Singh and ors.
RespondentGhasi and ors.
Excerpt:
civil procedure code, sections 278, 283 - execution of decree--application in execution department--separate suit--remedy under section 283 not excluded by previous application under section 278. - - that the only course open to the plaintiff was to take objection in the execution department, and on failure thereof to bring the suit contemplated by section 283 of the code of civil procedure. it is quite true that that section provides a means by which, without the trouble and expense and delay of instituting fresh suits, a person whose interests are assailed in the execution department may seek his remedy, and only then, upon failure of his claim or objection may be compelled to have recourse to the provisions of section 283 to declare his rights......execution department, and on failure thereof to bring the suit contemplated by section 283 of the code of civil procedure. the ruling upon which he mainly relied is the ruling in man kuar v. tara singh i.l.r. 7 all. 583. in that case sir comer petheram, the then chief justice, in delivering the judgment of the court, drew from the peremptory language of section 244 of the code the inference that all such questions which were then before him should be decided in the execution department and not otherwise. section 244 has by a continuous stream of authorities been held to apply only to cases of dispute between decree-holders and judgment-debtors or the representatives of either of them, and in no case applies to matters involving the rights and interests of third parties. the sections.....
Judgment:

Blair and Banerji, JJ.

1. This is a suit brought under Section 42 of the Specific Belief Act, 1877 (Act No. I of 1877). The property, which has been claimed by a decree-holder as property answerable in execution for a debt found to be due to him, is one of which attachment had taken place but possession remained with the plaintiffs. The prayer was in terms a prayer for the release of the plot attached. The suit of the plaintiff was decreed by the Munsif, and when it went on appeal before the Subordinate Judge of Mainpuri, he held that there was no cause of action because of certain rulings of this Court; that the only course open to the plaintiff was to take objection in the execution department, and on failure thereof to bring the suit contemplated by Section 283 of the Code of Civil procedure. The ruling upon which he mainly relied is the ruling in Man Kuar v. Tara Singh I.L.R. 7 All. 583. In that case Sir Comer Petheram, the then Chief Justice, in delivering the judgment of the Court, drew from the peremptory language of Section 244 of the Code the inference that all such questions which were then before him should be decided in the execution department and not otherwise. Section 244 has by a continuous stream of authorities been held to apply only to cases of dispute between decree-holders and judgment-debtors or the representatives of either of them, and in no case applies to matters involving the rights and interests of third parties. The sections relating to the claims of third parties are Section 278 and the succeeding sections, and the number of cases that have arisen in cases of claim or objection by third parties is very numerous. It is quite true that that section provides a means by which, without the trouble and expense and delay of instituting fresh suits, a person whose interests are assailed in the execution department may seek his remedy, and only then, upon failure of his claim or objection may be compelled to have recourse to the provisions of Section 283 to declare his rights. Curiously enough the respondent in this case had to go back to a ruling a dozen years old to obtain colour for his suggestion that the remedy under Section 278 is an exclusive and not a cumulative remedy. It seems to us upon general principles that no person can be excluded from his right of suit by the provision of a means of a special kind in certain circumstances, and we look in vain for any indication that the provisions of Section 278 and the succeeding sections are intended to be exclusive. If in the conclusion to which we have arrived we are in conflict with the ruling in Man Kuar v. Tara Singh, we have the entire agreement of the present Chief Justice in the view we have taken and we think also that the cursus curiae has run in the same direction for many years. Had the Legislature intended that the provisions of Sections 278 of the Code of Civil Procedure and the succeeding sections should be of an exclusive kind, one short sentence would have made the necessary correction. It comes to this, that the Subordinate Judge in appeal has decided the case wrongly upon a preliminary point. We find that there is a cause of action in this case. We set aside the dismissal of the suit and remand the case to the Lower Appellate Court for re-trial according to law, under Section 562 of the Code of Civil Procedure. Costs to abide the result.


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