1. This suit is brought to declare the plaintiff's right to attach certain property in execution of the decree in Original Suit No. 479 of 1899 which he obtained against one Gopalacharlu. The defendant also was a party to that suit. The Judge has, therefore, held that the question is one that should have been determined in execution and not by separate suit. But as the Court which tried this original suit is also the Court for executing the decree, he held that the Court has not acted without jurisdiction and disallowed the contention of the appellant that the suit must be dismissed on the ground that it is barred by Section 244 of the Civil Procedure Code of 1882.
2. The same contention is raised before us. In the earliest reported case, brought to our notice which has been subsequently followed in delivering the judgment of the Court Couch, C.J. said: 'With regard to the objection that this ought not to be by a separate suit, but by a proceeding in execution of the decree, the answer appears to us to be that the objection ought to have been taken in the Court of the Subordinate Judge, where it appears by the written statement it was not taken.
3. 'Section 11, Act XXIII of 1861, no doubt, provides that questions arising between the parties to the suit in which the decree was passed and relating to the execution of the decree, shall be determined by, order of the Court executing the decree, and not by separate suit. But that, we consider, does not affect the jurisdiction of the Court, but only the form of procedure. Here, a separate suit has been brought in the same Court as would have had the execution of the decree. There was a wrong form of proceeding, but there was not, in our opinion, a want of jurisdiction which can be made a ground of objection in the present stage of the suit. Whatever language may have been used by the learned Judges in the case Mr. Allan quoted must be considered with reference to the case before them, which was one where the party was suing in the wrong Court, in the Civil Court, when he ought to have sued in the Revenue Court. Here, the Subordinate Judge decided that the question between the parties could not be entertained in executing the decree, but must be tried by a separate suit. Supposing in that he decided wrongly, we consider that it is not, as we have said, a question of want of jurisdiction. The plaintiff has been led by that decision to bring the present suit. She has acted perfectly bona fide, having been misled by the decision of the Judge.' Purmessuree Pershad Narain Singh v. Jankee Kooer 19 W.R. 90. This was followed in Azizuddin Hossein v. Ramanugra Roy 14 C.b 605 where it was similarly pointed out there is no exercise of jurisdiction by the Munsif which he did not possess in determining the question in a separate suit if any application under Section 244 to determine such question also would have been inquired into by him. It was also held where the point was not raised by the pleadings, the High Court should not allow it to be raised before that Court, This was followed in Biru Mahata v. Shyama Churn Khawas 22 C.j 483. In that case the plaintiff had failed to get any relief in, execution proceedings under Section 244 The High Courts of Allahabad and Madras took the same view in Jhamman Lal v. Kewal Ram 22 A.k 121; Mayan Pathuti v. Pakuran 22 M.k 347 and Pasupathy Ayyar v. Kothanda Rama Ayyar 28 M.k 64.
4. It was contended by Mr. Govinda Raghava Ayyar that the suit brought by the respondent cannot be treated as a proceeding under Section 244, as there was already an application under that section on which an order was passed against him. But there were similar applications and orders in Pasupathy Ayyar v. Kothanda Rama Ayyar 28 M.J 64; Biru Mahata v. Shyama Churn Khawas 22 C. B483 and in the case of Purmessuree Pershad Narain Singh v. Jankee Kooer 19 W.R. 90. It must also be noticed that the reason of the rule is, as pointed out by Couch, C.J., that the question is only one of procedure and does not affect the jurisdiction of the Court. We, therefore, disallow this contention.
5. It has also to be pointed out that this question was not raised before the Munsif nor before the Judge till he had written his judgment on the other questions raised in the case; and according to the decisions in Purmessuree Pershad Narain Singh v. Jankee Kooer 19 W.R. 90 and Azizuddin Hossein v. Ramanugra Roy 14 C.B 605 the appellant ought not to have been allowed to raise this question at that stage.
6. We dismiss the second appeal.