Jugal Kishore vs Daulat Singh and Another

Arthur Strachey, C.J.—The plaintiff in this case claims to recover certain Immovable property, which was sold by the Collector in execution

of a decree transferred to the Collector for execution under the rules made u/s 320 of the Code of Civil Procedure, from the second defendant,

who was the purchaser at that sale. The plaintiff was the judgment-debtor: the first defendant is the decree-holder: and the object of the suit is to

recover possession of the property, notwithstanding the execution sale, on the ground that the sale by the Collector was vitiated by certain defects.

After a remand made by the Lower Appellate Court to the Court of First Instance, both Courts have decreed the claim. The question raised by

this appeal on behalf of the defendants is whether the suit will lie.

Now the first ground on which the suit is based is that the property in question was not ancestral property, and that consequently the decree

ought not to have been transferred for execution to the Collector. Before making its order of transfer the Civil Court, in accordance with the rules

made by this Court, issued notice to the decree-holder and the judgment-debtor for the determination of the question whether the property was

ancestral or not. The judgment-debtor the present plaintiff, did not contest that application, and the order for transfer was thereupon made. It is

clear, therefore, that the question whether the property was ancestral or not was a question arising between the parties to the suit--the decree-

holder and the judgment-debtor. That being so, the present suit, so far as this first point is concerned, is barred by Section 244(c) of the Code of

Civil Procedure, having regard particularly to the interpretation placed on that clause by the Full Bench of this Court in Basti Ram v. Fattu ILR

(1886) All. 146. It was there pointed out that the section prohibits not only a separate suit between the parties to the decree or their

representatives, but also a suit by a party or his representatives against a purchaser at a sale in execution of a decree, the object of which is to

determine a question which properly arose between the parties or their representatives, and which relates to the execution, discharge, or

satisfaction of the decree. As I have already stated, the question whether this property was ancestral did arise between the parties to the suit. It

clearly related to the execution of the decree, because on it depended the Court which should have jurisdiction to execute the decree and the

procedure by which the decree should be executed. The Full Bench decision to which I have referred is supported by the case of Prosunno Kumar

Sanyal v. Kali Das Sanyal ILR (1892) Cal. 683, decided by their Lordships of the Privy Council. For these reasons it appears to me that, so far as

the suit is based upon an allegation that the, property was being wrongly treated as ancestral for the purposes of execution, it is barred by Section

244 of the Code.

The second ground upon which the suit is based is that the auction-purchaser in this case in execution of the decree, although nominally the

second defendant, who is the son of the decree-holder, was really the first defendant, the decree-holder himself, and that as the purchase by the

decree-holder was without the permission of the Court, it was in violation of Section 294 of the Code. As to that it is sufficient to say that this

question too falls within Section 244 of the Code, because, on the plaintiff''s own showing, it is a question arising between the parties to the suit

and relating to the execution of the decree. So far as regards the second point, therefore, the suit is also barred by Section 244.

The third point raised by the suit is that the sale was effected by the Collector in disregard of an order directing the postponement of the sale

passed by the Munsif who had transferred the execution of the decree to the Collector. As to that it is sufficient to say that no such order of

postponement could be legally made by the Munsif. The execution having been transferred to the Collector, the Munsif, so long as it remained with

the Collector, had no power to interfere with the proceedings, as by postponing the date of sale: only the Collector himself could do that.

These are the only grounds on which the suit has been brought. It follows from what I have said that the suit ought to have been dismissed. This

appeal is allowed, the decrees of the Courts below set aside, and the suit dismissed with costs in all Courts.

Banerji, J.

I am of the same opinion.