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indro NaraIn Gossami Vs. Ishan Chunder Bandopadhya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal788
Appellantindro NaraIn Gossami
Respondentishan Chunder Bandopadhya
Cases ReferredGunamane Dasi v. Prankishori Dasi
Excerpt:
sale in execution of decree - payment not certified to court--fraud--setting aside sale--cause of action--regular suit. - .....belonging to the plaintiff.2. the only question raised before us is, whether under the code of civil procedure now in force, a suit will lie to set aside the sale of plaintiff's property as having been held fraudulently, and in breach of the undertaking on receipt of the money paid out of court in satisfaction of the liability of the plaintiff judgment-debtor under the decree, whether the law (section 258) having placed it in the power of a judgment-debtor making such a payment to obtain the assistance of the court, within a certain specified period, to require the decree-holder to certify that payment, any suit brought practically for the same purpose is not barred.3. as an authority that the present suit will not lie, the case of patankar v. devji i.l.r. 6 bom. 146 has been cited......
Judgment:

Prinsep, J.

1. It has been found by the lower Appellate Court that the defendant, who held a decree against the plaintiff and others, agreed to take, and did take, from plaintiff Rs. 25, as representing his liability under this joint decree, and at the same time undertook to abstain from further proceedings, but that notwithstanding he persisted in executing the decree and sold certain property belonging to the plaintiff.

2. The only question raised before us is, whether under the Code of Civil Procedure now in force, a suit will lie to set aside the sale of plaintiff's property as having been held fraudulently, and in breach of the undertaking on receipt of the money paid out of Court in satisfaction of the liability of the plaintiff judgment-debtor under the decree, whether the law (Section 258) having placed it in the power of a judgment-debtor making such a payment to obtain the assistance of the Court, within a certain specified period, to require the decree-holder to certify that payment, any suit brought practically for the same purpose is not barred.

3. As an authority that the present suit will not lie, the case of Patankar v. Devji I.L.R. 6 Bom. 146 has been cited. On the other hand, we find that in the case of Guni Khan v. Koonjo Behary Sein 3 C.L.R. 414 it has been held by a Division Bench of this Court that the law is unaltered by the Code of 1877, re-enacted by Act XIV of 1882. In respect of the matter now before us we find no material difference between Section 11, Act XXIII of 1861, now repealed, and Section 244 of the Code of Civil Procedure which has taken its place, and we observe that it was after full consideration of the effect of Section 11, Act XXIII of 1861, on a payment in satisfaction of a decree made out of Court that the judgment of a Full Bench of this Court in the case of Gunamane Dasi v. Prankishori Dasi 5 B.L.R. 223: 13 W.R. F.B. 69 was delivered.

4. Nor do we think that the terms of the last sentence of Section 258 have altered the law as thus expounded. No doubt it has been declared that 'no such payment or adjustment shall be recognized by any Court unless it has been certified' according to Section 258, but in our opinion this refers to any Court of execution, either the Court which itself passed the decree and is executing it, or any Court to which the decree may have been transferred for purposes of execution. It seems to us that whenever the Legislature has intended that any matter shall not be re-opened in any subsequent suit or proceeding, it has indicated that intention by more definite terms by either declaring that no subsequent suit shall lie, or that the particular order shall be final.

5. In this view on the findings of the lower Appellate Court, the plaintiff is entitled to a decree, and this appeal must be dismissed with costs.


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