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Sah Man Mull and anr. Vs. Kanagasabapathi - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Judge
Reported in(1893)ILR15Mad20
AppellantSah Man Mull and anr.
RespondentKanagasabapathi
Cases ReferredPeary Mohun Chowdhry v. Romesh Chunder Nundy I.L.R.
Excerpt:
civil procedure code, sections 244, 294, 308, 622 - sale in execution--purchase-money and judgment-debt set off against each other--representative of decree-holder--appeal--revision. - .....rulings are not applicable. this, however, makes no difference in principle, as one who attaches a decree is the decree-holder's representative within the meaning of section 244, as was also held by the calcutta high court in peary mohun chowdhry v. romesh chunder nundy i.l.r. 15 cal. 371.3. it is further contended that the objection that the district judge's order is appealable was not urged before the learned judge or before us when we made our former order. this is true; but the objection is one that goes to the jurisdiction of the court to interfere at all under section 622. we must, therefore, entertain the objection.4. the learned judge's order dismissing the petition was, therefore, correct; but it should have proceeded on the ground that the application under section 622 could.....
Judgment:

1. It is contended that, as an appeal lies from the order made by the District Judge, the appellant's petition under Section 622 was not maintainable, and that, therefore, it was properly rejected. It must be conceded that the order is appealable under Section 244 of the Code of Civil Procedure--Vallabhan v. Panqtmni I.L.R. 12 Mad. 454 and Muttia v. Appasami I.L.R. 13 Mad. 504.

2. It is urged on behalf of respondent that as he is not an assignee of the decree, but one who attached it under Section 273, the above rulings are not applicable. This, however, makes no difference in principle, as one who attaches a decree is the decree-holder's representative within the meaning of Section 244, as was also held by the Calcutta High Court in Peary Mohun Chowdhry v. Romesh Chunder Nundy I.L.R. 15 Cal. 371.

3. It is further contended that the objection that the District Judge's order is appealable was not urged before the learned Judge or before us when we made our former order. This is true; but the objection is one that goes to the jurisdiction of the Court to interfere at all under Section 622. We must, therefore, entertain the objection.

4. The learned Judge's order dismissing the petition was, therefore, correct; but it should have proceeded on the ground that the application under Section 622 could not be entertained, the order objected to being appealable.

5. We dismiss this appeal, but, under the circumstances, without costs.


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