1. The appellant obtained a money-decree against respondents' father in Original Suit No. 295 of 1877 on the file of Sivaganga Munsif. Prior to its execution the judgment-debtor died and his sons, the respondents, were made parties to the execution proceedings as his legal representatives. The appellant then attached some land, which was their ancestral property, brought it to sale, and himself bought it. The sale was confirmed under Section 314 of the Code of Civil Procedure, and respondents objected subsequently to its validity, on the ground that the property attached and sold was not that of the judgment-debtor, and not liable to be sold as such in execution. For the appellant it was contended that non-saleability was not an objection, which could be raised after the sale had been confirmed, except by a separate suit and that the sale was valid.
2. The Courts below held that the objection ought to be dealt with under Section 244 of the Code of Civil Procedure, and that the sale was not valid and accordingly set it aside. To this order three objections are taken, viz., (i) that the application was barred by limitation, (ii) that the matter was res judicata, (iii) and that the objection could not be entertained under Section 244.
3. The plea of res judicata was not pressed in the Courts below, nor can the plea of limitation be supported, the attachment being made with reference to a pending application for execution which had been filed in time. The substantial question for decision is whether the question raised as to the property not being liable to be sold is one which falls under Section 244 of the Code of Civil Procedure. The parties to this proceeding were the plaintiff and the representatives of the defendant in suit, and the question whether the sale is valid is a question whether a proceeding bad in execution should be set aside and falls under Section 244. This was the ground on which the case of Viraragava v. Venkata I.L.R. 5 Mad. 217 was decided. As pointed out in that case the contention that it is an accident, that the purchaser is also a party to the suit, and, therefore, he is not a party within the meaning of Section 244 is clearly not tenable, the intention being to prevent, as far as possible, one suit growing out of another and jo render all questions between the parties to the suit and relating to the execution, discharge or the satisfaction of the decree liable to be dealt with in execution. It is then said that the matter which may be inquired into must be taken to be restricted to irregularities mentioned in Section 311, but we cannot accede to this contention. The ground on which the sale was sought to be set aside in Viraragava v. Venkata I.L.R. 5 Mad. 217 was fraud. If the proceeding sought to be set aside is one which relates to execution, and if the contest as to its validity is between the parties to the suit, the specific ground on which the proceeding is impeached is not material within the meaning of Section 244.