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Murlidhar Vs. Musammat Goma - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in5Ind.Cas.210
AppellantMurlidhar
RespondentMusammat Goma
Excerpt:
execution of decree - order to sell properties in certain order--subsequent application not to sell property in that order--res judicata. - .....consequent upon a decree obtained under section 88 of the transfer of property act. part of the property covered by the decree was purchased by one musammat goma, respondent, after the decree had been passed. in due time an order absolute -was obtained by the decree-holder and on his proceeding to get the court to sell the property, musammat goma put in an application asking that the portion of the property which has been purchased by her and which is known and described as lot no. 1 might be brought to sale after the portion held by the original mortgagors, which was known and marked as lot no. 2 had been sold. the application made by her was allowed by the court on the 30th of july 1908. in the meanwhile other litigation was proceeding and the result of that litigation was that it.....
Judgment:

1. This second appeal arises out of execution proceedings consequent upon a decree obtained under Section 88 of the Transfer of Property Act. Part of the property covered by the decree was purchased by one Musammat Goma, respondent, after the decree had been passed. In due time an order absolute -was obtained by the decree-holder and on his proceeding to get the Court to sell the property, Musammat Goma put in an application asking that the portion of the property which has been purchased by her and which is known and described as lot No. 1 might be brought to sale after the portion held by the original mortgagors, which was known and marked as lot No. 2 had been sold. The application made by her was allowed by the Court on the 30th of July 1908. In the meanwhile other litigation was proceeding and the result of that litigation was that it was held that the mortgagors Munni and Chunni had no title. The decree-holder again asking for the sale of the whole of the property covered by the decree, Musammat Goma applied and prayed for the same relief which she had made in the previous application. The lower appellate Court held that it had no alternative but to allow her prayer. The case was covered in its opinion by the ruling in Nageshar Prasad Singh v. Srinivas Pande A.W.N. (1891) p. 33. The learned Advocate for the appellant tries to distinguish that ruling from the present case on two grounds, one being that in the case of Nageshar Prasad Singh v. Srinivas Pande A.W.N. (1891) p. 33 the decree was a simple money decree and not a decree under Section 88 of the Transfer of Property Act, and secondly, that the order obtained in this case was an ex parte order and cannot be held to be an adjudication between the parties of the objection raised therein. He further contended that the principle of res-judicata which he admitted fully applies to execution proceedings, did not apply to matters of procedure such as the order in which the property should be sold. He directed our attention to the case of Muhammad Ismail v. Wazir Ali 4 A.L.J. 400 : A.W.N. (1907) 163. We have examined these cases. We think that the case before us is covered by the ruling in Nageshar Prasad Singh v. Srinivas Pande A.W.N. (1891) p. 33 and that the case of Bihari Lal Wajid Ali A.W.N. (1897) p. 29 is also to the same effect. The result is that the appeal fails and is dismissed with costs including in this Court fees on the higher scale.


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