Guruvayya and Others vs Vudayappa

In the Full Bench cases decided in this Court Viraraghava v. Subbakka ILR 5 Mad. 397 and Mallamma v. Venkappa ILR 8 Mad. 277 it does

not appear that any question as to the satisfaction of the debt out of Court was raised in the execution proceedings. So also in the case of Sita Ram

v. Mahipal ILR 3 All. 533 and Shadi v. Gang a Sahai ILR 3 All. 538. The ground of decision in the Madras cases was that the question was not

whether the decree had been satisfied and satisfaction should be recorded, but whether there had been a fraudulent breach of contract which had

not formed the subject of inquiry in the suit or in the execution proceedings.

Here, however, the question of payment oat of Court did form the subject of inquiry in execution proceedings. Though an order u/s 258 is not

made appealable u/s 588, it is appealable u/s 244, being made on a question arising between the parties to the suit, and falling under the definition

of ''decree.'' The view taken in Lingayya v. Narasimha ILR 14 Mad. 99 coincides with that taken in Ghazidin v. Fakir Bakhsh ILR 7 All. 73; Ranji

v. Bhaiji Harjivan ILR 11 Bom. 57 and has been again followed in Tamna Prasad v. Mathura Prasad ILR 16 All. 129 No separate suit will lie,

since the question whether the payment has been made is res judicata between the parties.

The decrees of the Courts below must be confirmed and this second appeal dismissed with costs.