Nagamuthu Muthrian and Others vs Savarimuthu Ammal

Shephard, 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 she 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 favor remained standing. But although both plaintiff

and 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'' pre-supposes 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 The defendant against whom the suit was withdrawn, would of course be a party to the suit in which the decree was passed.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 ho 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 put 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 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 plaintiff has obtained a decree, obstruct delivery to her. If the provisions of Section 244

applied it must be held that plaintiff could execute her decree as against the defendants. But if 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 defendants were concerned having

been quashed. None of the cases quoted in argument apply. In Viraraghava v. Venkata I. L. R 5 M 217, the parties were parties to the suit in

which the decree was passed. In Vallabhan v. Pangunni I. L. R 12 M 454, the parties were the decree-holder and the judgment-debtor and in

Muttia v. Appasami I. L. R 18 M, 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 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.