Nand Kishore vs Lalji Mal on 12 March, 1897

Allahabad High Court
Nand Kishore vs Lalji Mal on 12 March, 1897
Equivalent citations: (1897) ILR 19 All 332
Bench: J Edge, Kt., Blair


John Edge, Kt., C.J. and Blair, J.

1. Lalji Mal purchased from the judgment-debtors some immovable property whilst it was under attachment in execution of a decree. Application was sub-sequently made to bring that property to sale in execution of the decree. Lalji Mal filed an objection under Section 278 of the Code of Civil Procedure and that objection was allowed. Thereupon Nand Kishore, the judgment-creditor, brought this suit under Section 283 of the Code to have it declared that the property purchased by Lalji Mal might be brought to sale in execution of his (Nand Kishore’s) decree. The first Court dismissed the suit. The second Court, in appeal, set aside the decree of the first Court and made an order of remand under Section 562 of the Code of Civil Procedure. From that order this appeal has been brought.

2. It is contended on behalf of the appellant, Lalji Mal, that the suit did not lie, as the order passed on his objection was an order in a matter to which Section 244 of the Code applied. On the other side it is contended that Lalji Mal was not a representative of a judgment-debtor within the meaning of Section 244, and further, that, his objection having been filed under Section 278 of the Code, Section 244 did not apply.

3. Convenience, which is not always a good reason for laying down a proposition of law, would suggest that a sale which was contrary to the provisions of Section 276 of the Code of Civil Procedure, should, if challenged by the decree-holder, be a matter to be adjudicated upon under Section 244. In our opinion, as the property in question was under attachment at the time the sale took place, the purchaser must be treated as a representative of the judgment-debtor; on the same principle as he would have been a representative of the judgment-debtor by reason of his purchase, if the decree had been one far sale of a particular property. The position of a purchaser of a property affected by a decree for sale was discussed by this Court in Madho Das v. Ramji Patak I.L.R. 16 All. 286.

4. Now as to the other point. It has been decided by two different Benches of this Court that a person to whom Section 244 of the Code applies cannot avoid the application of that section by filing his objection to execution under Section 278. The cases to which we refer are Shankar Dat Dube v. J.C. Harman and Co. I.L.R. 17 All. 245, and Imdad Ali v. Jagan Lal I.L.R. 17 All. 478. The plaintiff’s suit was, in our opinion, barred by Section 244 of the Code of Civil Procedure.

5. We allow this appeal with costs, and, setting aside the order of the Court below, we dismiss the appeal to the Court below with costs, and restore and affirm the decree of the Court of First Instance.

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