Krishnan Chetti vs Arunachalam Pillai and Others

The appellant obtained a money-decree against respondents father in Original Suit No. 295 of 1877 on the file of the Shivagunga Munsif. Prior

to its execution the judgment-debtor died and his sons, the respondents, were made parties to the execution proceedings, as his legal

representatives. The appellant then attached some land which was their ancestral property, brought it to sale and himself bought. The sale was

confirmed u/s 314 of the CPC and respondents objected subsequently to its validity on the ground that the property attached and sold was not that

of the judgment-debtor and not liable to be sold as such in execution. For the appellant it was contended that non-sale ability was not an objection

which could be raised after the sale had been confirmed except by a separate suit and that the sale was valid.

The courts below held that the objection ought to be dealt with u/s 244 of the CPC and that the sale was not valid and accordingly set it aside.

To this order, three objections are taken, via., (1) that the application was barred by limitation, (2) that the matter was res judicata,, and (3) that

the objection could not be entertained u/s 244.

The plea of res judicata was not pressed in the courts below. Nor can the plea of limitation be supported, the attachment being made with

reference to a pending application, for execution which had been filed in time. The substantial question for decision is whether the question raised

as to the property not being liable to be sold is one which falls u/s 244 of the Code of Civil Procedure. The parties to this proceeding were the

plaintiff and the representatives of the defendant in suit and the question whether the sale is valid is a question whether a proceeding (bad) in

execution, should be set aside and falls u/s 244. This was the ground on which the case reported at I. L. R 5 M 218, Virara-ghava v. Venkata,

was decided. As pointed out in that case the contention that it is an accident that the purchaser is also a party to the suit and therefore, he is not a

party within the meaning of Section 244 is clearly not tenable, the intention being to prevent as far as possible one suit growing out of another and

to render all questions between the parties to the suit and relating to the execution, discharge, or the satisfaction of the decree liable to be dealt with

in execution. It is then said that the matter which may be enquired into must be taken to be restricted to irregularities mentioned in Section 311 but

we cannot accede to this contention. The ground on which the sale, was sought to be set aside in the case reported at I. L. R, 5 M, was fraud. If

the proceeding sought to be set aside is one which relates to execution and if the contest as to its validity is between the parties to the suit, the

specific ground on which the proceeding is impeached is not material within the meaning of Section 244.

The appeal fails and is dismissed.