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Judgment
11 paragraphs · 296 wordsThe question in dispute between the parties to the appeal ''relates to the satisfaction of a decree obtained in the Small Cause Court as to which
the court executing that decree has found in proceedings u/s 258 of the Code that a sum of Rs. 130, and not the full sum of Rs. 255, has been
paid. There was no appeal against this finding of the executing court as there might have been, and consequently the order has become final. The ,
present suit is virtually to set aside and to restrain the defendant by injunction from the execution of the Small Cause Court decree. We are clearly
of opinion that the subordinate judge is in error in holding that the suit will lie. No doubt an action can be maintained on a contract such-as there
was in Nujeem Mullick v. Erfam Mollah (1884) 22 W. R. 298 and Nukend Harshet v. Haridas Khenji ILR (1892) B. 23 or again a suit may lie in
cases such as that in Kunhamed v. Kutti ILR (1896) M. 168 But here the dispute relates not to any matter outside the decree the question is
whether the payment was of Rs. 130 or Rs. 255 and on this question there was an inquiry and a decision. Such an order is clearly an order falling
u/s 244 and so it has been held for the purpose of appeal. (Lingayya v. Namsimha ILR (1890) M. 99 Rangji V. Bhaiji Harjivan ILR (1886) B. 57
Jamna Prasad v. Mathura Prasad ILR (1893) A. 129. This being so, the suit is clearly barred by the provisions of Section 244. The The appeal is
allowed and the decree of the District Munsif restored. The plaintiff must pay costs in this Lower Appellate Court.