Vasudeva Upadyaya vs Visvaraja Tirthasami and Another

Shephard, J.—The first respondent (hereinafter referred to as the respondent) being plaintiff in the suit claims certain property in virtue of a

sale effected in 1879 by the appellant''s uncles in his favour. The appellant claims the same property as purchaser at a subsequent sale held in

execution of a decree, dated the 9th July 1877, and passed in a partition suit in which the appellant was plaintiff. In that suit the appellant''s father

and uncles were defendants and the respondent was also joined as a mortgagee of part of the family property. By the decree in the partition suit

the respondent was made liable with his co-defendants for certain moneys payable to the appellant; there were other matters in the decree in

regard to which the defendants other than the respondent were made liable. In 1889 application was made by the appellant for execution of the

decree as against all the judgment-debtors including the respondent; and in pursuance of that application the abovementioned property was sold to

satisfy the appellant''s claim as against the judgment-debtors other than the respondent. The respondent took objection to this and made a claim

which was unsuccessful. Accordingly, the present suit was brought to raise the question whether the property claimed by the respondent belongs to

him in virtue of his purchase or whether it was the property of the judgment-debtors and as such liable to be seized and sold in execution of the

decree against them. It is contended on the appellant''s behalf that this question is one relating to the execution of the decree to which both

appellant and respondent are parties, and that therefore it cannot be made the subject of a fresh suit. On the other hand, it is pointed out by the

respondents'' vakil that the particular application which led to a sale of the property was not directed against the respondent but against other

persons, and the decision in Nagamuthu v. Savarimuthu ILR 15 Mad. 226 was cited. In my opinion the present case is not in principle

distinguishable from the case cited. I do not think it makes any difference that the application for execution was made at one and the same time

against the respondent and other judgment-debtors. The liability of the latter under the decree, in discharge of which the sale took place, was a

distinct liability which did not in any way concern the respondent. Nagamuthu v. Savarimuthu ILR 15 Mad. 226 decides that, if against one

defendant there is no liability under the decree, any question arising out of the execution against the other defendants is not, as between the first-

named defendant and the decree-holder, a question relating to the execution of the decree within the meaning of Section 244 of the Code of Civil

Procedure. In the present case the decree was capable of being executed against the respondent. He was not a stranger to the execution

proceedings altogether, but it was an accident that he had notice of the application which led to the sale. It might have happened that he had no

notice, or again that against them the decree might have been satisfied before the application against the others was made. In the latter case I

conceive it could not be said that there was any question as between him and the decree-holder as to the execution of the decree. The District

Judge refers to the language of Sections 332 and 335, and suggests that these sections should be read with Section 244. The suggestion appears

to me a sound one and it confirms me in the view taken of the law in Nagamuthu v. Savarimuthu ILR 15 Mad. 226 .

I am of opinion that the suit being instituted by one who was no party to the particular proceeding in execution is not barred by the Section 244

of the Code. I therefore dismiss the appeal with costs.