Gur Prasad and Others vs Ram Lal and Others

Blair and Burkitt, JJ.—Upon the finding of fact that at the time of purchase there was an attachment, the only question in as to the application of the law to that finding. The question to be decided is;--Are the plaintiffs as purchasers representatives of the judgment-debtor so as to fall within the category of persons specified in Section 244 of the Code of Civil Procedure? Two cases have been cited to us which are in apparent contradiction. The first is the case of Madho Das v. Ramji Patak ILR All. 286, and the other is Lalji Mal v. Nand Kishore ILR All. 332. The first was decided by the late Chief Justice and our brother Banerji, the second by the late Chief Justice and one of us. In the former case it was found as one of the facts that there was a subsisting attachment at the time of purchase, though no mention of such attachment is made in the rest of the judgment. We have consulted one of the Judges who decided that case, and he having perused it, informs us that in the course of the delivery of the judgment the fact of the existence of that attachment was not present to the mind of the Court. We see no reason to depart from the ruling in the latter case, which we believe to be sound and in accordance with the drift of the decisions of this Court. The result is that we find that the plaintiffs in this case are representatives of the judgment-debtor, and as such are bound to seek their remedy by application u/s 244, and not by separate suit. The result is, that we allow the preliminary objection taken to the hearing of this appeal, and it follows therefore that the decrees of both the lower Courts are set aside and the suit of the plaintiffs is dismissed ab initio, but, under the circumstances, without costs. We regret that it is impossible for us to take what we believe to be the equitable course of allowing the plaintiffs to turn their plaint into an application u/s 244, the Court in which the suit was filed not being one in which the execution proceedings could be carried on. The appeal is dismissed.