1. This appeal is brought against an order which purports to be trade under Section 144, Civil Procedure Code, in Suit No. 789 of 1907 filed by the respondent, Jwala Prasad, against Sewa Singh and certain other defendants.
2. In that suit Jwala Prasad caused the produce of 37 plots to be attached. The present appellant, Sheikh Chhuttan, asked that the sale of the crops might be stayed on account of a declaratory suit which he was filing. He did file such a suit against Jwala Prasad and certain third parties on 13th April 1920 for a declaration that the crops in dispute were not liable to sale under Jwala Parasad's decree but were the property of tenants cultivating from him on a batai rent so that he, Sheikh Chhuttan, was entitled to half the crops. Sheikh Chhuttan's suit was decreed by the Court of first instance. While this suit was pending an application was made by him to have the crops made over to a sipurdar and they were made over to two persons, Khumani, who was a servant of Sheikh Chhuttan, and one Sewa Singh. In some way which is not explained the crops were subsequently entrusted to Sheikh Chhuttan's son, the second appellant. Kalim-ud-din. After Sheikh Chhuttan's suit was decreed Kalim-ud-din made over half the crops to his father and the other half to the tenants. This was about October 1920, On 28th July 1931 Sheikh Chhuttan's suit was dismissed in appeal.
3. Jwala Prasad's application for execution of his decree had remained pending from 28th February 1920. Thereupon on 2nd May 192T the decree-holder, Jwala Prasad, filed an application which is on the record asking that the grain might be brought to sale and stating that he would take separate proceedings for the loss caused to him by the wrongful suit of Sheikh Chhuttan. The Court then issued notice to the sipurdar to produce the property for sale. Notice seems to have been served on Kalim-ud-din, for the order-sheet contains an order of the Court dated 17th December 1921 stating that he objects that he was not sipurdar in this case but in the case instituted by his father. The Court overruled this objection on the ground that the property was attached in Jwala Prasad's suit and that the attachment became subject to the result of the suit subsequently filed by Sheikh Chhuttan. The Court held that Kalim-ud-Din was bound to produce the property and that being unable to do so by reason of having given it to other persons without authority from the Court he was bound to deposit the price. Ultimately, on 1st September 1922, the order out of which the present appeal arises was passed against Sheikh Chhuttan andKalim-u4-din directing them to pay Rs. 1,000 in respect of the attached crops wrongfully appropriated by them. An appeal was preferred to the District Judge. To this appeal a preliminary objection was taken that no appeal lay; the learned Judge held that Section 144, Civil Procedure Code, applied but on the merits considered that the Munsif's order was correct and declined to interfere.
4. The appellant's case in this Court is that the Courts below had no jurisdiction to pass an order against the appellant in execution proceedings in Jwala Prasad's suit. It is urged that neither Kalim-ud-Din nor Sheikh Chhuttan was a party to that suit and, further, that the proceedings by which a sipurdar was appointed and in which the alleged act of wrongful misappropriation was committed, took place in Sheikh Chhuttan's Suit No. 231 of 1920 and not in Jwala Prasad's suit. It is?therefore, contended that Jwala Prasad's only remedy against the appellants was to institute a regular suit against them, as in the case of Sheikh Chhuttan he originally declared his intention of doing.
5. On behalf of the respondent decree-holder it is contended that Kalim-ud-Din was sipuraar in Jwala Prasad's case and as such is liable and it is further urged that as en the appellant own contention the case is not covered by Section 144, Civil Procedure Code, no appeal lies to this Court.
6. I have no hesitation in overruling the preliminary objection. One of the issues which the Judge of the Court below had to decide was whether the case was covered by Section 144, Civil Procedure Code. He applied his mind td the question and he decided it and the appellant cannot be deprived of his right of appeal because one of his grounds for challenging the decree is that the decision on this issue was wrong.
7. On the merits it is difficult to see how any proceedings under Section 144, Civil Procedure Code, could possibly be taken against the appellants in Jwala Prasad's case. Kalim-ud-Din, at any rate, was no party to that case either in the original Court or in the execution proceedings. The order appointing him sipurdw was -made in the suit filed by Sheikh Chhuttan. His position being substantially that of a Receiver under Chapter XI, of the Code the Court might in that suit have called on him to produce the crops or their value. It could not do so in a suit to which he was an entire stranger. Sheikh Chhuttan-s only connection with Jwala Prasad's suit was the fact that be applied to have the sale of the crops stayed on the ground that be was going to file a separate suit in respect of them. Whatever further proceedings were taken by him were taken in his own suit. Moreover, Section 144 only applies where a decree has been set aside in appeal or otherwise. The only decree which has been set aside is the decree in Sheikh Chhnttan's suit. Whatever remedy the respondents had against the appellant,; was either by application in Shaikh Chhutan's suit to which the respondent was a party, or by a separate suit. The present proceedings on his part were entirely misconceived. I, therefore, allow the appeal and set aside the decree against the appellants. As the appeal is allowed on a technical point I award no costs. The parties will beat their own costs in all Court.