Viraraghava and Another vs Venkata

The suit is one to recover possession of land with mesne profits. Veeraragava Ayyangar, the first defendant, obtained a decree for money

against the plaintiff, Venkata Chari, in Original Suit No. 104 of 1876. In execution of that decree, he attached and brought to sale the plaint and

other lands. In July 1878, at the Court auction, first defendant himself purchased the plaint land and was put in possession, Plaintiff thereupon filed

a suit to set aside the sale on the ground that first defendant had purchased without the permission of the Court. It was held in second appeal,

Viraraghava v Venkata ILR 5 Mad. 217 that a suit would not lie and that plaintiff''s remedy, if any, was in execution. Plaintiff then applied to the

Subordinate Court which passed orders cancelling the sale. Plaintiff now brings a suit for possession. The Subordinate Judge was of opinion that,

as the matter is one which arises in the execution of the decree, the suit is barred by the provisions of Section 244 of the Civil Procedure Code. On

appeal, the District Judge held that the order cancelling the sale was not a decree and was therefore not capable of execution, and that as Section

294 contained no provision for giving possession. Plaintiff''s only remedy was by suit,

On second appeal it is argued that no suit would lie. Plaintiff''s remedy, if any, being in execution.

In Viraraghava v. Venkata I.L.R., 5 Mad., 217 the learned Judges held that the question whether the sale could be impugned on any ground

was a question relating to the execution of the decree, and therefore a question which the parties were prohibited from raising by separate suit. If

they went on to say, the decree-holder purchased without having obtained leave to bid, the Court executing the decree would, on that ground, be

bound to declare the sale void. Application was then made to the Subordinate Court to declare the sale in execution void, and in September 1882

the Subordinate Court cancelled the sale. Instead of applying for possession, the plaintiff has filed this suit. But the same objection appears to us to

be valid against this suit, as was held to be valid against the former suit. In execution of the decree in a suit to which both plaintiff and first

defendant were parties, first defendant obtained possession of the land. The question as to first defendant''s right to hold the land appears to us to

be a question relating to the execution of the decree. The Court executing the decree has already declared the sale void and it is that Court which

must replace plaintiff in possession. The decree in Original Suit No. 104 was satisfied by the amount of the first defendant''s bid having been set off

against the amount due by the plaintiff. That satisfaction having now, been cancelled by the order of the Court executing the decree, the question as

to defendant''s possession is one arising between the parties to the suit relating to the execution and satisfaction of the decree, and therefore one

which must be disposed of u/s 244 and not by separate suit.

On behalf of the plaintiff-respondent it is argued that, as an order u/s 294 is appealable u/s 588(16). the provisions of Section 244 do not apply

to this case. This is the argument adopted by the District Judge. He says that the question is how, when the sale has been set aside, is the person in

whose favour the order is made to get re-delivery. The answer appears to us to be clear; the Court which did the erroneous act, that is, which put

the first defendant in possession must undo it, and that is the Court executing the decree. The fact that an appeal is provided against an order

passed u/s 294 in no way bars the applicability of the general principle laid down in Section 244. According to what appears to us to be the

proper construction of that section, the only Court which can grant the relief which the plaintiff seeks is the Court executing the decree and a suit

for possession will not lie.

The decree of the District Judge must be reversed, and that of the Subordinate Judge restored with costs in this and the lower Appellate Court