Nagamuthu and Others vs Savarimuthu

Shaphard, J.—The only question argued was whether the maintenance of the suit was precluded by the provisions of Section 244 of the

CPC by reason of the plaintiff and the defendants having been parties to a prior suit. As far as the plaintiff is concerned, there can be no doubt that,

although it is in the character of purchaser at the sale in execution of her decree that he now brings the suit to secure possession of the lands sold to

her, she is, nevertheless, a party to the suit in which the decree was obtained within the meaning of Section 244 of the Civil Procedure Code. The

defendants, also having been defendants in the prior suit, are parties to that suit, and none the less so, because ultimately it was as against them

dismissed, while as against their co-defendants, who did not appeal, the decree in the plaintiff''s favour remained standing. But, although both the

plaintiff and the defendants are parties to the former suit, I do not think that the question now raised is one "" arising between the parties to the suit

in which the decree was passed and relating to the execution, discharge or satisfaction of the decree"" within the meaning of the Section. As

between the plaintiff and the defendants no such question can arise, because there is no decree against the defendants to be executed, discharged

or satisfied. They are not judgment-debtors of the plaintiff. No doubt the present suit is occasioned by the decree-holder''s desire to give effect to

his decree, and may be said to arise out of the execution of his decree. But in my opinion, regard being had to the language of the Section, a

question relating to the execution of the decree presupposes a person against whom execution is sought and cannot arise as between the decree-

holder and persons who, as far as concerns execution, are complete strangers. In the present case the defendants were dismissed from the prior

suit on appeal. But a much stronger case might be put to illustrate the inconvenience of giving a larger operation to the Section. For instance in a

suit against two defendants the plaintiff might withdraw the suit against one with or without liberty to bring a fresh suit and obtain a decree against

the other. The defendant against whom the suit was withdrawn would of course be a party to the suit in which the decree was passed. But he

would have no concern in the execution of the decree, and in my opinion no question relating to the execution could arise between him and the

decree-holder. If it be correct to say that the object of the Section is to put a limit to litigation and prevent one suit growing out of another, it is''

clear that in such a case as the one put the Section ought not to be applicable. It cannot have been intended to prohibit suits between persons as

between whom no adjudication in respect of their right has as yet taken place.

In my opinion the District Judge was right in the conclusion at which he arrived, and therefore the appeal should be dismissed with costs.

Wilkinson, J.

I am of the same opinion. The question is not, as the District Judge puts it, whether the present suit is a part of the execution proceedings, but

whether, within the meaning of Section 244, Civil Procedure Code, the plaintiff and defendants were parties to the suit in which the decree was

passed. In one sense no doubt they were so, and the defendants having been allotted their costs in appeal, are or were entitled to take out

execution of the decree. But the question at issue between the parties in the present suit is not one relating to the execution, discharge or

satisfaction of the decree in that suit. The defendants are not, with reference to the subject-matter of the present suit, judgment-debtors, but

occupy the position of third parties, who, being in possession of the land for which the plaintiff has obtained a decree, obstruct delivery to her. If

the provisions of Section 244 applied, it must be held that the plaintiff could execute her decree as against the defendant. But if the plaintiff were to

take out execution proceedings against the defendants, she would be met by the plea that there is no decree to be executed, the decree so far as

the defendants were concerned having been quashed. None of the cases quoted in argument apply. In Viraraghava v. Venkata ILR 5 Mad. 217

the parties were parties to the suit in which the decree was passed. In Vallabhan v. Pangunni ILR 12 Mad. 454 the parties were the decree-holder

and the judgment-debtor, and in Muttia v. Appasami ILR 13 Mad. 504 the question was one relating to the execution of the decree between the

representative of the original decree-holder and one of the judgment-debtors, the decree-holder having become, as the plaintiff in this case has, the

purchaser of the property. The present defendants cannot, in my opinion, be regarded as occupying any one of these positions. The second appeal

fails and is dismissed with costs.