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Lingayya and anr. Vs. Narasimha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1891)ILR14Mad99
AppellantLingayya and anr.
RespondentNarasimha
Excerpt:
civil procedure code, sections 2, 244, 258, 588--appeal against an order under section 258. - - we are not prepared to hold that the objection is a good one. the arguments and reasoning employed by him apply to the whole transaction, of which the sale-deed formed an item and he was clearly satisfied to concur in the district munsif's conclusion that the whole transaction was fraudulent......and no appeal lies.2. the order, which it is sought to appeal against, was made under section 258, civil procedure code, and no appeal is allowed against such orders under section 588, civil procedure code, unless therefore the order is a decree within the meaning of the definition in section 2 of the civil procedure code, an appeal will not lie. the definition in section 2 includes orders made under section 244, civil procedure code, but these orders must be orders, it is said, made in execution of a decree, that is to say, after application has been made to a court in the execution department to enforce a decree.3. here it is admitted no application had been made for execution to the court, the decree having been passed on the 8th november and the application of the defendants, out of.....
Judgment:

1. A preliminary objection is taken that no second appeal and no appeal lies.

2. The order, which it is sought to appeal against, was made under Section 258, Civil Procedure Code, and no appeal is allowed against such orders under Section 588, Civil Procedure Code, unless therefore the order is a decree within the meaning of the definition in Section 2 of the Civil Procedure Code, an appeal will not lie. The definition in Section 2 includes orders made under Section 244, Civil Procedure Code, but these orders must be orders, it is said, made in execution of a decree, that is to say, after application has been made to a Court in the execution department to enforce a decree.

3. Here it is admitted no application had been made for execution to the Court, the decree having been passed on the 8th November and the application of the defendants, out of which the present proceedings have arisen, having been made on the 30th November following. We are not prepared to hold that the objection is a good one. The language of Section 244, clause (c), viz., any other question relating to the satisfaction of a decree, appears to us to be probably wide enough to embrace such a proceeding as that arising on an application to record satisfaction, even where no application has been made for execution.

4. A petition by an execution creditor for execution is not, in our opinion, a necessary preliminary to an order falling within the terms of Section 244, Civil Procedure Code.

5. It is not, however, necessary to determine the question, as on the merits we consider the appeal cannot be sustained. The only objection urged on the merits is that the District Judge did not record an express finding on the sale-deed, which formed part of the consideration for the alleged satisfaction,

6. The District Judge has not, however, we consider, overlooked this item. The arguments and reasoning employed by him apply to the whole transaction, of which the sale-deed formed an item and he was clearly satisfied to concur in the District Munsif's conclusion that the whole transaction was fraudulent.

7. On the merits the appeal fails and is dismissed with costs.


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