Privy Council in Prosunno Kumar v. Kali Das (v), to the effect that the object of this section being to prevent multiplicity of suits, it should receive a liberal interpretation. As regards questions relating to the execution, discharge or satisfaction of a decree, and arising between the representative of an execution-purchaser on the one hand and a party to the suit or his representative on the other, it has been held that those do not come within the scope of this section (w). Illustrations. (1) In execution of a decree obtained by A against B, certain property belonging to B is sold. B sues A and the auction-purchaser to set aside the sale on the ground that the property was by its nature not "saleable" within the meaning of s. 266, and it ought not to have been attached and sold. The suit is barred under this section, though one of the parties is an auction-purchaser, the question being one relating to the execution of the decree within the meaning of this section (x). Note. If B had, in the above case, instead of bringing a regular suit, applied under this section to set aside the sale on the ground aforesaid, the application would not have been entertained, as it ought to have been made prior to the auction-sale. B would thus be without a remedy, but that would be owing to his own fault (y). (2) A obtains a decree against B. In execution of the decree, certain property belonging to B is sold, and purchased by C. B refuses to deliver possession of the property to C. C cannot maintain a separate suit against B for delivery of possession, but must proceed by an application under this section (z). Proceedings for the delivery of possession to the auction-purchaser after sale in execution of a decree are proceedings in execution of the decree within the meaning of this section (a). Objection by party or his representative that property attached is not liable to attachment.-All objections to attachment raised by a party to the suit in which the decree was passed or his representative come under this section. But objections to attachment raised by a third party come under s. 278. This distinction is important, for an order under this section, being a (s. 2) is appealable, but an order under s. 278 is not appealable. decree" If the property in the hands of a judgment-debtor is attached, and the judg ment-debtor objects to the attachment on the ground that the property is not "saleable" within the meaning of s. 266, and should not therefore be attached, as where it is service vatan, or an occupancy holding, the objection is one under s. 244, for it is made by a party to the suit (b). But if the judgment-debtor objects to the attachment on the ground that he holds it on behalf of a third party, e.g., as a trustee or guardian, the objection comes under s. 278 (c). As regards objections to attachment by the legal representative of a deceased judgment-debtor, it has been held that if property in the hands of a legal representative is attached, and the legal representative objects to the attachment on the ground that the property attached is his own property, and does not form part of the estate of the deceased judgment-debtor, the objection is one under s. 244, for it is made by a representative of a party to the suit (d). But if the (r) 19 Cal. 683, 19 I. A. 166. (w) Sreenath v. Roma Nath, 3 C. W. N. 276. (y) Basti Ram v. Fattu, 8 All. 146; Durga (z) Kettayat v. Raman, 26 Mad. 740; Sandhu v. Husain, 28 Mad. 87. (a) Madhusudan v. Gobinda, 27 Cal. 34. S. 214 S. 244 legal representative objects to the attachment on the ground that he holds the property on behalf of a third barty, the objection is one under s. 278 (e). Where sale is impeached on the ground of fraud.—An objection to a sale of property in execution of a decree on the ground of fraud is a question to be determined exclusively under this section, and not by separate suit, even though the purchaser was no party to the decree. It was so held by their Lordships of the Privy Council in Prosunno Kumar v. Kali Das (f). A obtains a decree against B for Rs. 5,000. In execution of the decree certain property belong. ing to B is sold, and purchased by C. B seeks to set aside the sale on the ground of fraud on the part of A and C. B should proceed not by separate suit, but by an application under this section (g). The same procedure is to be adopted even if the sale is sought to be set aside after it has been confirmed under s. 312 (h). Suppose that in the case put above, B had proceeded by an application under this section to set aside the sale, and that the sale was set aside by the Court executing the decree on the ground of fraud. Has C, the auction-purchaser, the right to appeal from the order setting aside the sale, regard being had to the fact that he was no party to the decree? Yes; for the order being one under s. 244, it is appealable at the instance of any party to the order. The question of a right to appeal does not turn upon who may happen to be the appellant, but upon whether or not the case is one within s. 244 (i). Where a sale is sought to be set aside on the ground that the “decree" was obtained by fraud.-Note that in the preceding paragraph, the case considered was that of a sale impeached on the ground of fraud. In such a case we have seen that a separate suit will not lie. We now proceed to note the following cases : 1. A suit will lie to set aside a decree and a sale held in execution of the decree, where both the decree and sale are impeached on the ground of fraud (j). The reason is that the question of the validity of a decree can only be determined by a regular suit. See ill. (1) under the head "Separate suit will lie, ante. p. 242. 2. A obtains an ex parte decree against B. In execution of the decree, certain property belonging to B is sold and purchased by C. The ex parte decree is then set aside under s. 108. B thereafter sues A and C to set aside the sale, challenging not only the sale, but also the decree, on the ground of fraud. Is the suit barred under this section? No, for B is entitled to show that the decree was obtained by fraud, and this can only be done in a regular suit (k). Appeal. On referring to the definition of decree" given in s. 2 above, it will be seen that an order determining any question mentioned or referred to in s. 244 is a "decree." Hence an appeal lies from all orders under s. 244, and also a second appeal (s. 584). It is important to note that all orders in execution proceedings are not appealable. As regards appeal, orders in execution proceedings may be divided into two classes : (1) Orders under s. 244. [An appeal lies from these orders and also a second appeal.] (e) Ramanathan v. Levvai, 23 Mad. 195, 199. (f) 19 Cal. 683, 19 I. A. 166. Bhubon v. Nunda, 26 Cal. 324; Mathura (2) Other orders in execution proceedings. These may again be sub- When an order is made in execution proceedings, and the order is nonappealable, attempts are frequently made by the parties against whom the order is made to show that the order comes under s. 244, and is therefore appealable (2). Similarly, when an order is made in execution proceedings, and the order is appealable under s. 588, attempts are frequently made by the parties against whom the order is made to show that the order comes under s. 244 to enable the party to prefer a second appeal (m). It will thus be seen that this section is important not only as regards the question whether a separate suit will lie, but also as regards the question of appeal. Limitation. See Limitation Act, art. s. 165, 166, 167, 172, 173a, 174 and 178. E. Of the mode of executing Decrees. Procedure on receiving application for execution of decree. 245. The Court, on receiving an application for the execution of a decree, shall ascertain whether such of the requirements of sections 235, 236, 237 and 238, as may be applicable to the case, have been complied with; and, if they have not been complied with, the Court may reject the application or may allow it to be amended then and there, or within a time fixed by the Court. If the application be not so amended, it shall be rejected. Every amendment made under this section shall be attested by the signature of the Judge. ting application. When the application is admitted the Court shall enter Procedure on admit- in the register of the suit a note of the application and the date on which it was made, and shall order execution of the decree according to the nature of the application : Provided that, in the case of a decree for money, the value of the property attached shall, as nearly as may be, correspond with the amount for which the decree has been made. Scope of the section-This section lays down the procedure to be adopted by the Courts on receiving an application for execution of a decree. Limitation.-Article 179 of the Limitation Act provides inter alia that the first application for execution must be made within three years from the date of the decree. If the decree is not fully executed, and it is necessary to make further applications, each successive application must be made within three years from the date of the last application." But the "last application" in each case must (1) Mammod v. Locke, 20 Mad. 487; Ram (m) Bhubon Mohun v. Nunda Lal, 26 Cal. 324; Ss. 244-245 S8. have been one "in accordance with law"; otherwise it cannot give a fresh start245-245A ing point for limitation. An application which does not comply with the requirements of ss. 235-238 is not one "in accordance with law" (n). We proceed to consider the bearing of the present section on the provisions of the Limitation Act. If an application is made for execution, and it does not comply with the requirements of ss. 235-238, the Court may under this section return it for amendment within a time to be fixed by the Court. If it is amended within the time fixed, it will be deemed to be an application "in accordance with law," so as to give a fresh starting point for limitation. If it is not amended within the time fixed by the Court, it cannot give a fresh start, for it is only an application that is "in accordance with law" that can give a fresh starting point for limitation (0). Illustration. A obtains a decree against B on 1st January, 1902. On 20th December, 1904, A applies for execution of the decree. The application does not comply with the requirements of s. 235, and it is returned for amendment, and a week's time is allowed for the purpose. No amended application is put in, but on 1st January, 1906, that is, more than three years after the date of the decree, A presents a fresh application for execution. The application is time-barred, for though it is made within three years from the date of the last application, the last application not having been amended is not one "in accordance with law." If the application had been amended within the time allowed by the Court, it would have kept the decree alive for a further period of three years, in which case the application of 1st January, 1906, would have been within time: Gopal Sah v. Janki Koer, 23 Cal. 217. In the last-mentioned case, the High Court of Calcutta expressed the view that where an order is made under this section for amending an application for execution, and the amendment is made, the application should be deemed to have been presented, not on the date when it was first presented, but on the date when it was amended. The result would therefore be that if the amendment was not made until after the period of limitation, the application would be time-barred (þ). See notes to s. 48. Unsuccessful application.-If an application for execution is admitted under this section, it will be deemed to be "in accordance with law" within the meaning of art. 179 of the Limitation Act, though it is eventually dismissed by the Court after hearing the parties. The words "in accordance with law" do not mean that the application must of necessity be a successful one. "That is too narrow a construction to put on the article" (q). or 245A. Notwithstanding anything in the last foregoing section, or in any other section of this Code, the Court shall not order the arrest or imprisonment of a woman in execution of a decree for money. of Prohibition of arrest imprisonment women in execution of decree for money. This section was added into the Code by Act VI. of 1888, s. 2. Discretionary power to permit other judgment-debtors to show cause against impri sonment. 245B. (1) Notwithstanding anything in section 245 or in any other section of this Code, when an application is for the execution of a decree for money by the arrest and imprisonment of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court may, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to jail in execution of the decree. (2) If appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor. Discretionary power to issue notice. When a decree is for the payment of money, and execution is applied for against the person of the judgment-debtor, the Court may issue a notice to the judgment-debtor calling upon him to show cause why he should not be committed to the civil prison in execution of the decree. As to the procedure after notice, see notes "Execution against person of judgmentdebtor, p. 210 ante. See also s. 337A. Cross-decrees. 246. If cross-decrees between the same parties for the payment of money be produced to the Court, execution shall be taken out only by the party who holds a decree for the larger sum, and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction on the decree for the smaller sum. If the two sums be equal, satisfaction shall be entered upon both decrees. Explanation I.-The decrees contemplated by this section are decrees capable of execution at the same time and by the same Court. Explanation 11.-This section applies where either party is an assignee of one of the decrees, and as well in respect of judgment-debts due by the original assignor as in respect of judgment-debts due by the assignee himself. Explanation III.-This section does not apply unlessthe decree-holder in one of the suits in which the decrees have been made is the judgment-debtor in the other, and each party fills the same character in both suits; and the sums due under the decrees are definite. S8. 245B-246 |