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Musammat Najmunnissa Bibi Vs. Lala Jamna Das - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in1Ind.Cas.78
AppellantMusammat Najmunnissa Bibi
RespondentLala Jamna Das
Excerpt:
civil procedure code (act xiv of 1882), sections 244 and 285 - court of district judge superior to that of subordinate judge--power to realise property attached by two courts of different grades--decree-holder also a, judgment debtor--right to appeal. - - this view of the learned subordinate judge is clearly erroneous. there fore, it is the district judge alone who has the power to realise the property and the order of the subordinate judge is clearly erroneous......najmunnissa has obtained decree for her dower against the same estate from the court of the district judge of mirzapur. in execution of her decree she has caused certain property to be attached as the property of farzand ali. jamna das in execution of his decree has caused the same property to be attached. there are thus two attachments on the same property; namely, one under the orders of the district judge and the other under the orders of the subordinate judge. najmunnissa was a party to the suit brought by jamna das and is judgment-debtor in the decree passed in that suit. she objects to the sale of the attached property by the subordinate judge on the ground that as it has been attached by a court of a higher grade the subordinate judge has no jurisdiction to sell it. the.....
Judgment:

1. A preliminary objection has been taken to the hearing of this appeal on behalf of the respondent on the ground that no appeal lies. The facts are these. The respondent Jamna Das holds a decree against the estate of one Farzand Ali passed by the Subordinate Judge of Mirzapur. The appellant Musammat Najmunnissa has obtained decree for her dower against the same estate from the court of the District Judge of Mirzapur. In execution of her decree she has caused certain property to be attached as the property of Farzand Ali. Jamna Das in execution of his decree has caused the same property to be attached. There are thus two attachments on the same property; namely, one under the orders of the District Judge and the other under the orders of the Subordinate Judge. Najmunnissa was a party to the suit brought by Jamna Das and is judgment-debtor in the decree passed in that suit. She objects to the sale of the attached property by the Subordinate Judge on the ground that as it has been attached by a court of a higher grade the Subordinate Judge has no jurisdiction to sell it. The objection was raised on the strength of the provisions of Section 285 of the Code of Civil Procedure, 1882. The learned Subordinate Judge has overruled the objection on the ground that his court is not inferior to the court of the District Judge as an appeal from his court in the particular case lay to the High Court and not to the District Judge. This view of the learned Subordinate Judge is clearly erroneous. Section 285 provides that in the event of property being attached by more courts than one the court which shall receive or realise such property shall be the court of the highest grade. The court of the District Judge is undoubtedly a court of a higher grade than the court of the Subordinate Judge. There fore, it is the District Judge alone who has the power to realise the property and the order of the Subordinate Judge is clearly erroneous. It is however, contended on behalf of the respondent that the objection raised by Najmunnissa was advanced by her as a rival decree-holder and therefore she could not prefer the present appeal. As, however, Najmunnissa is a judgment-debtor in the decree and was a party to the suit in which the decree was passed she was competent to raise the objection that the property could not be sold by the Subordinate Judge. We think that she was entitled to prefer this appeal being a party to the suit within the meaning of Section 244 of the Code of Civil Procedure of 1882. We therefore decree the appeal and setting aside the order of the Court below, allow the objection of the appellant with costs here and in the court below. The costs of this Court will include fees on the higher scale.


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