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Ali Ahmad Khan Vs. Bansidhar and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in1Ind.Cas.951
AppellantAli Ahmad Khan
RespondentBansidhar and ors.
Excerpt:
attachment raised and property released on objection - release set aside and properly declared liable to sale on decree-holder's suit--sale by judgment-debtor after declaration and setting aside of release order pre-emptor getting the same property by pre-emption decree--right of decree-holder to follow property in the hands of pre-emptor--original attachment subsisting and in force--creditor's lien not affected by release subsequently set aside. - .....then instituted a suit under section 283 and obtained a decree in june 1899, declaring that the attached property be brought to sale in execution of their decree. on the 18th january 1901 musammat mohan kunwar one of the judgment-debtors in the original decree sold the property in suit to one bholanath. ali ahmad, the present appellant, then instituted a suit for and obtained a decree for pre-emption over the same property.3. the application out of which the appeal has immediately arisen was instituted on the 13th of may 1907 to bring to sale the property attached as far back as the 9th of january 1898. ali ahmad objected saying that inter alia the property cannot be sold. his objections were dismissed by the court below and he now comes here in appeal.4. no argument was addressed to.....
Judgment:

1. This First Appeal arises out of Execution Proceedings connected with a decree held by the respondents, obtained by them on the 27th of May 1895 and confirmed by this Court on the 22nd of March 1897.

2. The respondents in execution proceedings instituted on the 17th December 1897, attached certain properties with a portion of which we are concerned in the present application. On the objection of Gauri Sahai and Chadami Lal the properties with which we are concerned were released from attachment. The decree-holders then instituted a suit under Section 283 and obtained a decree in June 1899, declaring that the attached property be brought to sale in execution of their decree. On the 18th January 1901 Musammat Mohan Kunwar one of the judgment-debtors in the original decree sold the property in suit to one Bholanath. Ali Ahmad, the present appellant, then instituted a suit for and obtained a decree for pre-emption over the same property.

3. The application out of which the appeal has immediately arisen was instituted on the 13th of May 1907 to bring to sale the property attached as far back as the 9th of January 1898. Ali Ahmad objected saying that inter alia the property cannot be sold. His objections were dismissed by the Court below and he now comes here in appeal.

4. No argument was addressed to us on the first ground contained in the memorandum of appeal:

5. The second ground, viz., that the attachment of 1898 no longer subsists does not commend itself to us. It has been held by the Calcutta High Court in an exactly similar case Bonomali Rai v.Prosunno Narain Chowdhry 23 C. 829, following Mahomed Warris v. Pitambur Sen 21 W.R. 435 that the case in the Weekly Reporter was a clear authority for the view that 'the lien of the attaching creditor dated from the attachment and was not destroyed or affected by the order of release which was in effect set aside by the decree.' This point was again considered and these cases were followed in Ram Chandra Marwari v. Mudeshwar Singh 33 C. 1158. This view is also consistent with that taken by the Bombay High Court in Lalu Mulji Thakar v. Kashibai 10 B. 400 and Bank of Upper India v. Shea Prasad (1897) A.W.N. 124. We would note at the same time that from the commencement up to date there has been unbroken continuity in the efforts made by the decree-holder to obtain satisfaction of his decree.

6. The original purchaser Bhola Nath purchased property at a time when it was subject to an attachment order of a Civil Court and Ali Ahmad can hold no higher position.

7. This disposes of the remaining pleas taken in appeal. The appeal is dismissed with costs including fees in this Court on the higher scale.


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