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1903 DIGILAW 3 (ALL)

Ahmadi Begam v. Amanat Husain

1903-06-28

BLAIR

body1903
JUDGMENT : Blair, J.:— This is the appeal of a plaintiff who instituted the suit against a brother of the defendant for possession of certain land of hers upon which a building had been erected by the predecessor in title of the defendant. She also asked for a mandatory injunction to remove such building. She got a decree. The defendant not having obeyed the decree, she took advantage of the provisions of section 260 of the Code of Civil Procedure and under that section obtained an attachment of the property of the contumacious judgment-debtor, and a sale of that property. At the auction sale it was purchased by his brother, the defendant here. The plaintiff proceeded in execution to take possession of what had been adjudged to be her property. The present defendant resisted those execution proceedings. The matter came before the execution court, and under section 331 of the Code of Civil Procedure it ordered the complaint of the decree-holder to be numbered and registered as a suit between the parties, that is to say, between the decree-holder and the alleged obstructer. That is the proceeding before me now in appeal. The Court of first instance decreed the claim of the plaintiff to the possession of this land and found that she had been illegally obstructed. 2. The lower appellate Court held that all the proceedings were nugatory and that what had taken place under the provisions of section 260 of the Civil Procedure Code was full satisfaction of the decree. The mistake was not, I should think, an easy one to make. The provisions of section 260 obviously supply a punitive means of punishing disobedience, it may be, to some special part of a decree, but they are not and never were intended to be a satisfaction of a decree so as to prevent the decree-holder from taking Further steps. It would be ludicrous to hold that; if a successful decree holder in a possessory action had under the provisions of section 260 received some compensation for an injury done, he should not be able in execution to enforce a right to possession of the property found under the decree to be hers and found also to have been wrongfully invaded by the defendant in suit. The lower appellate Court was obviously wrong. The lower appellate Court was obviously wrong. I decree this appeal with costs, and setting aside the decree of the Court below with costs restore that of the Court of first instance.