JUDGMENT
1. This appeal arises out of the following facts : The defendants-respondents advanced a loan on a promissory-note to the father of the present plaintiff-appellant. After the death of the father the respondents brought a suit against the sons and grandsons of the deceased and obtained a simple money-decree. In execution of that decree they attached certain ancestral property. Objection was taken by the present appellant that the property was not saleable in execution of the decree. The two lower Courts held against him. An appeal was preferred to this Court, but pending the decision thereof the appellant on the 9th of May, 1902, paid into Court two-thirds of the decretal money. On the 24th of June, 1903, this Court held that the property attached being ancestral property could not be sold in execution of the decree on the true construction of the terms of that decree. The plaintiff then came into Court within three years from the date of the High Court’s decree merely on the ground that the High Court had held that the property was not saleable in execution of that decree. He has sued for a refund of the money paid by him in satisfaction thereof together with interest. In defence it was urged that the suit was barred by Sections 244 and 583 of the Code of Civil Procedure of 1882.
2. The Court of first instance decided this point in favour of the respondents and dismissed the suit. An appeal was preferred to, the lower Court and it was there urged, first of all, that’ Section 244 of the Code was no bar to the suit, and secondly, that if it were bar, the lower Court should have treated the plaint as an application under that section and should have granted the reliefs claimed. The lower appellate Court overruled this objection and held that in the circumstances of the case special consideration should not be shown to the applicant and the plaint should not be treated as an application under Section 244. The learned District Judge also remarked that the suit was clearly not maintainable and that although the respondents raised the plea that it was not maintainable, the appellant did not ask the Court to treat his plaint as an application under Section 244 until it was about to decide the issues.
3. On appeal to this Court it is urged that tinder the circumstances the plaint ought to have been treated as an application under Section 583 and 244 of the Code of Civil Procedure of 1882. It is not disputed that Section 583 of the Code is not applicable to the present case, but it is argued that it falls under Section 244 of the Code. The question is whether on the allegations made on the plaint, the appellant is entitled to a refund of the money which he has already paid into Court. The mere fact that this Court held that the property was not saleable in execution of the decree will not in itself alone entitle the appellant to a refund of the sum which he paid into Court. The decree is one which could be executed against the assets of his father. He has not come into Court alleging that his father left no assets, or that he had applied those assets to the payment of his father’s debts. The Court was asked to order a refund simply on the ground that the High. Court held that the property being ancestral could not be sold in execution of the decree. On this ground alone he is not entitled to a refund and it would be waste of time to remand the case and order the plaint to be treated as desired. In our opinion the appeal must fail and is dismissed with costs.
