Dhani Ram Mahta vs Luchmeswar Singh And Murlilal … on 24 March, 1896

Calcutta High Court
Dhani Ram Mahta vs Luchmeswar Singh And Murlilal … on 24 March, 1896
Equivalent citations: (1896) ILR 23 Cal 639
Author: T A Beverley
Bench: Trevelyan, Beverley


Trevelyan and Beverley, JJ.

1. The only question in this case is whether it is competent to the appellant in these execution proceedings to oppose the application for execution on the ground that the person, who is said to have consented to the decree on his behalf, had no authority to consent to it. In our opinion this is a question which could not be raised in execution. We entirely agree with the view expressed by the Madras High Court in the case of Sndindra v. Budan I.L.R. 9 Mad. 80 Mr. Justice Hutchins, at page 83, points out that under section ‘244 the questions to be decided in execution are questions relating to the execution, discharge or satisfaction of the decree. A question whether the decree was obtained by fraud or collusion is not one which relates to the execution of the decree, but which affects its very subsistence and validity. This case is in many respects similar. An application in execution assumes the validity of the decree sought to be executed. If it is competent to a judgment-debtor to raise in execution questions as to the validity of a decree, there seems very little reason why he should not question the propriety of the decree, and thus rip up the whole of the proceedings. We are of opinion that this is not a procedure allowed by law. The appeal is dismissed with costs.

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