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Sahib Dyal Singh and ors. Vs. Musammat Auliyai Bibi and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in18Ind.Cas.1004
AppellantSahib Dyal Singh and ors.
RespondentMusammat Auliyai Bibi and ors.
Excerpt:
execution - pendency of execution proceeding--court's power to re-transmit the record to collector--jurisdiction--no fresh application necessary. - - the order re-transmitting the decree to the collector was a perfectly good order passed with jurisdiction and all subsequent proceedings cannot, in any sense, be said to be null and void......a decree on the 18th of december 1902 and on the 28th of january 1905 applied for execution of the decree by sale of certain ancestral property belonging to the judgment-debtors. on the 20th of may 1905, the decree was transmitted by the learned subordinate judge to the collector of the district for execution and proceedings continued in the court of the collector up to the 20th of may 1909. apparently, the sale of the property was repeatedly postponed. the cause of one postponement was that a third person brought a suit claiming the property for himself and in the course of that suit obtained an injunction restraining the execution of this decree. when the sale was again postponed under this injunction, the collector passed the following order:3. aj pesh hokar zahir hua hi yah mukadma.....
Judgment:

1. This appeal arises out of the following circumstances:

2. The decree-holders who are the appellants here finally obtained a decree on the 18th of December 1902 and on the 28th of January 1905 applied for execution of the decree by sale of certain ancestral property belonging to the judgment-debtors. On the 20th of May 1905, the decree was transmitted by the learned Subordinate Judge to the Collector of the District for execution and proceedings continued in the Court of the Collector up to the 20th of May 1909. Apparently, the sale of the property was repeatedly postponed. The cause of one postponement was that a third person brought a suit claiming the property for himself and in the course of that suit obtained an injunction restraining the execution of this decree. When the sale was again postponed under this injunction, the Collector passed the following order:

3. Aj pesh hokar zahir hua hi yah mukadma san 1905 iswi se dair hai aur barabar nilam multavi hota ata hai aj phir adalat diwani se hukum iltiwai nilam ka aya lihaza hukum hua ki nilam multavi hokar mukadma kharij hokar dakhildaftar kaghzat wapas hon.' In obedience to this order, the decree and the connected papers were retransmitted to the Civil Court. On the 25th of May 1909, the decree-holders applied to the Subordinate Judge and asked that the decree might be transmitted again to the Collector and that execution proceedings might be continued. On the 27th of May 1909, the Subordinate Judge passed an order whereby he postponed the striking off of the application for execution and finally, after hearing the objection raised by one of the judgment-debtors, which was to the effect that execution proceedings had come to an end and further proceedings could not be taken without a fresh application, he decided that execution proceedings should continue and again transmitted the decree to the Collector for execution according to rule. That order was passed on the 9th of July 1909. In the meantime, on the 5th of July 1909, the injunction mentioned above had been removed. The Collector, in execution of the decree on the 20th of November 1909, sold the property. Objections to the sale were find by the judgment debtors which were finally disallowed by the Collector on the 22nd of February 1910. On the 17th of November 1910, possession was given to the decree-holders, who had purchased the property and on the 10th of June 1911, two of the judgment-debtors filed an application to the Court below asking it to set aside the sale of the 20th of November 1909, mainly on the ground that all proceedings taken subsequent to the 20th of May 1909 were null and void as being ultra vires. The learned Subordinate Judge has accepted this plea and has set aside the sale as prayed by the judgment-debtors. We have no hesitation in holding that the decision of the Court below is absolutely and manifestly wrong. The order of the Collector dated the 20th of May 1909 is not an order which put an end to execution proceedings in the case except so far as it related to his Court. He then retransmitted the decree to the Court of the Subordinate Judge. There is no order anywhere to be found under which the application for execution made on the 23 th of January 1905 was definitely put an end to. When the application of 25th of May 1909 was made, there were pending execution proceedings in the Court of the Subordinate Judge. The order of the 27th of May shows that the learned Subordinate Judge intentionally kept the proceedings alive and as long as the proceedings were pending, the Court had power to go on with the execution and to re-transmit the decree to the Collector and there was no necessity for the decree-holders to put in a fresh application for execution and start proceedings de novo. The order re-transmitting the decree to the Collector was a perfectly good order passed with jurisdiction and all subsequent proceedings cannot, in any sense, be said to be null and void. Objection to the sale was taken and disallowed and this objection of the 10th of June 1910 is an example of the desperate attempts made by the judgment-debtors from time to time to prevent the decree-holders from recovering the amount of their decree. We allow the appeal and set aside the order of the Court below. The appellants will get their costs including fees on the higher scale.


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