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Allahabad High Court
Man Kuar vs Tara Singh And Ors. on 23 March, 1885
Equivalent citations: (1885) ILR 7 All 583
Bench: W C Petheram, Brodhurst


W. Comer Petheram, C.J. and Brodhurst, J.

1. We think that the appeal must be allowed on both grounds. The facts of the case are somewhat complicated, but when one comes to look at them, they appear to be as follows: A decree was obtained by one Kanhaiya Lal against four persons, who may, for the purposes of this decision, be styled defendants A and B and defendants C and D. A and B were owners of one property and C and D were owners of another property Both properties were attached and put up to sale; but as the two properties were distinct and situated in different places, they were put up to sale in two separate lots. The property of A and B was sold and purchased ostensibly by the uncle for the mother of A and B. For the purposes of deciding this point, and for this purpose only, I assume that the property was purchased by the mother by the money of A and B; that A and B found the money; and that the mother was the trustee for A and B in respect of this property. Upon the application of C and D impeaching the sale on the ground that the property was really purchased by A and B fraudulently and in collusion, the Court set aside the sale under Section 311, Civil Procedure Code. The first question then is whether the order setting aside the sale on the objections of C and D is correct? Whether the order setting aside the sale was just or unjust is beside the question. The question is, could C and D object under Section 311 to the validity of the sale of the property of A and B, and had the Court jurisdiction to set aside the sale on the application of C and D? Now C and D were neither the decree-holders nor the persons whose property was sold, and we do not see how they could apply under Section 311 to set aside the sale. We think the order setting aside the sale was without jurisdiction and invalid, and it must be reversed. The other question is, whether in this suit, brought by the mother on the allegations that this sale was improperly set aside, and that C and D have attached this property on the allegation that it was the property of A and B, their debtors (her two sons), she could contest the validity of the execution-proceedings taken by C and D on the allegation that the property was hers. It may be that she has a right to bring the suit, but the question is whether at present it is maintainable at all? If it is maintainable at all, it must be under Section 42 of Act I of 1877. To maintain such a suit, the plaintiff must allege that she is entitled to a legal character and right, and that C and D are interested in denying her right. Looking at Section 42 of Act I of 1877 alone, it may be said with considerable force that such a suit is maintainable. But if we look at Section 244 of the Civil Procedure Code, it indicates the intention of the framers of the Code that such questions should be determined in the execution department. Section 278 of the same Code provides a machinery for contesting the validity of execution-proceedings, and Section 283 again provides the machinery by which a regular suit is brought to contest the validity of the order passed in the execution department. Reading all these sections together, we do not think the suit is maintainable, and the proper mode for contesting the validity of the execution-proceedings is the one indicated by the Procedure Code. The suit is premature, and upon that ground and no other we dismiss the suit. The appeal is allowed in respect to the first claim. The second claim will be dismissed on the ground that it is premature. Under the circumstances of the case the appeal is allowed, but without costs.

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