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Viraraghava Ayyangar Vs. Venkatacharyar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1882)ILR5Mad217
AppellantViraraghava Ayyangar
RespondentVenkatacharyar
Excerpt:
civil procedure code, sections 244, 312, 294 - suit by judgment-debtor, against judgment-creditor and purchaser to set aside fraudulent sale, barred. - .....suit no. 88 of 1872, brought the suit now before the court on appeal, against the defendant, the decree-holder in original suit no. 104 of 1876, who had purchased certain land in execution of the decree, to have it declared that the sale is void, the decree-holder having in fraud procured the sale to be made without due advertisement. it is admitted that between a party to the suit and a stranger the provisions of section 312 would not debar the person aggrieved from instituting a suit if he could establish that a material error in the publication or conduct of the sale had its origin not in mere irregularity but in fraud; but in the case before the court, the parties were parties to the suit in which the decree was passed, the sale was held in the course of execution, and the question.....
Judgment:

Charles A. Turner, Kt., C.J.

1. In order to put a limit to litigation and to prevent one suit growing out of another the Legislature has enacted that all questions between the parties to the suit in which a decree is passed and relating to the execution, discharge, or satisfaction of the decree shall be determined by order of the Court executing the decree and not by separate suit. The plaintiff, a judgment-debtor in Original Suit No. 88 of 1872, brought the suit now before the Court on appeal, against the defendant, the decree-holder in Original Suit No. 104 of 1876, who had purchased certain land in execution of the decree, to have it declared that the sale is void, the decree-holder having in fraud procured the sale to be made without due advertisement. It is admitted that between a party to the suit and a stranger the provisions of Section 312 would not debar the person aggrieved from instituting a suit if he could establish that a material error in the publication or conduct of the sale had its origin not in mere irregularity but in fraud; but in the case before the Court, the parties were parties to the suit in which the decree was passed, the sale was held in the course of execution, and the question whether the sale can be impugned on any ground appears to us to be a question relating to the execution of the decree, and, therefore, a question which the parties are prohibited from raising by separate suit. If the suit had been a suit to recover damages for the alleged fraud, we are not prepared to say it could not have been maintained; but the object of this suit is to set aside a proceeding had in execution, to wit, the sale, and as between the parties to the suit the Court executing the decree is the only Court by which this relief can be granted. On this ground we allow the appeal, reverse the decrees of the Courts below, and dismiss the suit; but seeing that the appellant has proved grave irregularity, we would order each party to bear his own costs. If, as the Judge states, the decree-holder purchased without having obtained leave to bid, the Court executing the decree would on that ground be bound to declare the sale void.


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