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Fattu Vs. Basti Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All146
AppellantFattu
RespondentBasti Ram
Excerpt:
civil procedure code, section 244 - question for court executing decree--separate suit--civil procedure code, sections 266, 316. - - and questions regarding liability to attachment and sale arising out of the provisions of section 266 would clearly be questions within the meaning of section 244, civil procedure code......the plaintiff-judgment-debtor and the decree-holder, who is also the purchaser, and was determined against the former by the court which executed the decree prior to the sale; and it is a question which must be considered to relate to the execution, discharge, or satisfaction of the decree. it is, in effect, whether certain property was liable to attachment and sale to satisfy the decree.7. certain things are, by section 266, civil procedure code, not liable to attachment and sale; and questions regarding liability to attachment and sale arising out of the provisions of section 266 would clearly be questions within the meaning of section 244, civil procedure code. the question of the liability of the property, the subject of this suit, to attachment and sale, arises out of a provision.....
Judgment:

Oldfield, J.

1. By Section 244, Civil Procedure Code, it is provided that certain questions shall be determined by order of the Court executing the decree, and not by separate suit. Amongst these are all questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge, or satisfaction of the decree.

2. The questions must be questions which arise between parties to the suit or their representatives, and which relate to the execution, discharge, or satisfaction of the decree.

3. If they are questions of this nature, and which properly arise between the parties or their representatives, they must be determined by order of the Court executing the decree, and not by separate suit; and the provision disallowing separate suit to determine these questions applies not only to prohibit a suit between parties and their representatives, but also a suit by a party or his representatives against an auction-purchaser in execution of the decree, the object of which is to determine a question which properly arises between parties or their representatives, and relates to the execution, discharge, or satisfaction of the decree.

4. If the question be of this nature, it is one which by Section 244 must be determined by order of the Court executing the decree, and not by separate suit; and it is immaterial whether the party did or did not raise it prior to the auction-sale at the time of execution. If he did not, he lost the remedy which the Legislature has provided.

5. That this was the intention of the Legislature, and that a question of this kind cannot be raised by a party to the suit in which the decree was passed against a purchaser in execution of that decree seems evident from Section 316, which provides that, as regards the parties to the suit and persons claiming through or under them, the title to the property sold shall vest in the purchaser from the date of the sale-certificate.

6. In the case before us a judgment-debtor has sued the auction-purchaser to recover the property sold in execution of the decree, on the ground that the property, which is a tenant's right in land, is not by law saleable in execution of a decree. This question is one which arose between the plaintiff-judgment-debtor and the decree-holder, who is also the purchaser, and was determined against the former by the Court which executed the decree prior to the sale; and it is a question which must be considered to relate to the execution, discharge, or satisfaction of the decree. It is, in effect, whether certain property was liable to attachment and sale to satisfy the decree.

7. Certain things are, by Section 266, Civil Procedure Code, not liable to attachment and sale; and questions regarding liability to attachment and sale arising out of the provisions of Section 266 would clearly be questions within the meaning of Section 244, Civil Procedure Code. The question of the liability of the property, the subject of this suit, to attachment and sale, arises out of a provision in, the Rent Act; but equally with questions under Section 266, Civil Procedure Code, it is one which falls within the meaning of Section 244, Civil Procedure Code.

8. For these reasons I am of opinion that the suit is not maintainable, and on re-consideration I modify the opinion I expressed in the case of Narain v. Puran Weekly Notes. 1883 p. 218.


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