Posted On by &filed under Allahabad High Court, High Court.

Allahabad High Court
Collector Of Jaunpur vs Bithal Das And Anr. on 17 February, 1902
Equivalent citations: (1902) ILR 24 All 291
Author: B A Aikman
Bench: Banerji, Aikman


Banerji and Aikman, JJ.

1. The sole question which arises in this appeal is whether the application of the appellant was one under Section 244 of the Code of Civil Procedure, and should have been adjudicated upon by the Court below under that section The respondents obtained a simple decree for money against one Raja Hari Har Dat Dube, and in execution thereof caused certain property to be attached as the property of the Raja. Hari Har Dat Dube died during the pendency of execution proceedings, and his brother, Raja Shaukar Dat Dube, whose estate is now represented by the appellant, was brought on the record as his legal representative. On the 4th of April, 1892, he preferred an objection-respecting the application for the sale of the attached property, on the ground that the property sought to be sold belonged to him, and did not form a part of the assets left by Raja Hari Har Dat Dube. That objection was disallowed by the Court below on the 6th of September, 1892. On the 20th of March, 1893, the property was sold by auction and the proceeds of the sale were taken out of Court by the respondents on the 28th of September, 1893. Meanwhile Shankar Dat appealed to this Court against the order disallowing his objection, and it was during the pendency of this appeal that the property was sold. This Court, on the 5th of February 1895, set aside the order of the Court below, and remanded the case to that Court under Section 562 of the Code of Civil Procedure. In the result the Court of first instance, on the 25th of September, 1897, upheld the objection of Shankar Dat, and ordered that the property in question should be released from attachment, declaring that it was incapable of being attached in execution of the decree. The present application was made for the refund of the sale proceeds, which the respondents withdrew from Court on the 29th of September, 1893.

2. The Court below has refused the application on the ground that it is not one to which Section 244 of the Code of Civil Procedure relates. We are unable to agree with that view. The learned Judge was of opinion that the property having been sold and the decree having been satisfied no question relating to the execution, discharge or satisfaction of the decree could arise, and in support of his view he referred to the ruling of this Court in Ramchhaibar Misr v. Bechu Bhagat (1885) I.L.R. 7 All. 641. That case, if carefully looked into, does not support the learned Judge’s view. What was really decided in that case was, that after a sale any question which arose between the auction-purchaser and judgment-debtor was not a question relating to the execution of the decree. The judgment in that case must be considered with reference to the facts which the Court had to deal with. We have a number of authorities of later date in which it was held that a question of the nature of that which arises in this case is one relating to the execution, discharge or satisfaction of a decree, although it arises after a sale has taken place under the decree in other words, Section 244 applies as well to a dispute arising between the parties after the decree has been executed, as it does to a dispute arising between them previous to execution. We need only refer to Imdad Ali v. Jagan Lal (1895) I.L.R. 17 All. 78 and Dhan Kuar v. Mahtab Singh (1899) I.L.R. 22 All. 79. The principle of the Full Bench ruling in Partab Singh v. Beni Ram (1878) I.L.R. 2 All. 61 is also applicable. The mere fact that no execution case was pending before the Court below at the time when the appellant filed his application on the 27th of August, 1900, would not render Section 244 inapplicable. The result is that we allow this appeal, set aside the order of the Court below, and remand the case to that Court under Section 562 of the Code of Civil Procedure, for disposal on the merits. The appellant will have his costs of this appeal. Other costs will follow the result.

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