Skip to content


Mahomed Taki Khan Alias Peer Bux Khan and anr. Vs. Najhan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal872
AppellantMahomed Taki Khan Alias Peer Bux Khan and anr.
RespondentNajhan
Excerpt:
civil procedure code (act xiv of 1882), section 244, clause (c), - question relating to the execution of the decree--separate suit. - .....us, was to recover possession of the land claimed in the month of pous 1287. in execution of that decree possession was obtained by the appellant. thereupon the plaintiffs in this suit appeared as objectors, and contested the right of the appellant before us to eject them from the land now in dispute. their contention was that the decree awarded to the appellant only the right to recover possession of the property as proprietor, and that it did not extinguish their right as tenants. the matter was gone into, and the court executing the decree on the 17th april 1880, held that under it the appellant was entitled to recover khas possession of the property by evicting the plaintiffs. thereupon the present suit was brought to set aside that order and to recover possession of the land in.....
Judgment:

Mitter, J.

1. We are of opinion that this suit ought to be dismissed as barred under Section 244 of the Civil Procedure Code. The defendant appellant before us brought a suit against the present plaintiffs, and also certain other persons, including the wives of the present plaintiffs, as defendants. That suit was for possession of a piece of land, which includes the disputed land. In that suit the plaintiffs alleged that they were in possession as ryots. The question whether they were entitled to remain in possession of the land as ryots or not, was not gone into, but on the 11th of September 1879 a decree for possession was given in favour of the defendant appellant, and the direction in the decree was that the plaintiff in that case, viz., the appellant before us, was to recover possession of the land claimed in the month of Pous 1287. In execution of that decree possession was obtained by the appellant. Thereupon the plaintiffs in this suit appeared as objectors, and contested the right of the appellant before us to eject them from the land now in dispute. Their contention was that the decree awarded to the appellant only the right to recover possession of the property as proprietor, and that it did not extinguish their right as tenants. The matter was gone into, and the Court executing the decree on the 17th April 1880, held that under it the appellant was entitled to recover khas possession of the property by evicting the plaintiffs. Thereupon the present suit was brought to set aside that order and to recover possession of the land in dispute upon the tenant right of the plaintiffs. It appears to us that the question, which was decided by the execution Court, was a question which came under Clause (c) of Section 244. That clause is to the following effect: 'Any other questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree.' Now this question, viz., whether under the decree the defendant appellant was entitled to evict the plaintiff's, was a question which arose between the parties to that suit. There is no dispute as to that. It also appears to us that it was a question relating to the execution of that decree. The contention of the plaintiffs was, that the real effect of that decree was simply to entitle the decree-holder to obtain possession as proprietor. On the other hand, the contention of the appellant was that he was entitled under the decree to take khas possession of the property by evicting the plaintiffs in this suit. It was, therefore, a question relating to the execution of that decree, viz., a question as to the construction of it. The matter which was in dispute falling within Clause (c), Section 244, no separate suit would lie. Section 244 says that the questions enumerated in Clauses (a), (b) and (c) shall be determined by order of the Court executing the decree and not by separate suit. The plaintiffs, if so advised, might have appealed against the decision of the execution Court, but they are precluded from maintaining a separate suit by the express words of Section 244.

2. We, therefore, set aside the decision of the lower Appellate Court, and dismiss the plaintiffs' suit with costs in all the Courts.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //