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1906 DIGILAW 9 (ALL)

Garudhuj Prasad Singh v. Meju Mal

1906-01-11

BANERJI, RICHARDS

body1906
JUDGMENT : BANERJI, J.:— This appeal arises out of an application made by the applicant, Thakur Garudhuj Prasad Singh, for restitution tinder a decree made by His Majesty in Council under the following circumstances: —A suit was brought against the appellant by his brother for recovery of possession of a share in certain immovable property. It was dismissed by the Court of first instance, which held that the property was an impartible Raj and passed to the elder son by right of primogeniture. This decree was set aside by the High Court in appeal. The decree of the High Court was put into execution, and the plaintiff obtained possession of the property decreed to him. An appeal was preferred to His Majesty in Council with the result that the decree of the High Court was set aside, and that of the Court of first instance dismissing the suit was restored. Before the decree of the Privy Council was passed, certain malikana allowance, which was a part of the property decreed in the suit, was sold by auction in execution of a money decree obtained against the plaintiff and was purchased by the respondents. After the decree of the Privy Council the defendant to the suit, Garudhuj Prasad Singh, applied to be restored to possession of the property of which he had been deprived in execution of the decree of this Court. He was restored to possession of most of the property, but not of the malikana allowance. He accordingly made the application which has given rise to this appeal to be restored to possession of the malikana allowance also as against the respondents. The Court below has dismissed the application holding that, as the respondents were no parties to the decree made by His Majesty in Council, the application is not maintainable against them. In our judgment this view of the Court below is erroneous. The decree of His Majesty in Council had, in substance, the effect of decreeing restoration of the property, which had been wrongly decreed by the High Court and of which possession had been obtained in pursuance of that decree. Therefore it was an order of which enforcement might be sought under section 610 of the Code of Civil Procedure. The decree of His Majesty in Council had, in substance, the effect of decreeing restoration of the property, which had been wrongly decreed by the High Court and of which possession had been obtained in pursuance of that decree. Therefore it was an order of which enforcement might be sought under section 610 of the Code of Civil Procedure. Upon an application being made under that section, the Court to which the order is transmitted is to enforce it in the manner and according to the rules applicable to original decrees. The order of His Majesty in Council having been transmitted to the lower Court, it had to give effect to it under the provisions of the Code of Civil Procedure relating to execution, that is to say, under the provisions of section 244. The respondents being auction purchasers of the property pending the appeal to His Majesty in Council are representatives of the judgment-debtor within the meaning of that section. A Full Bench of this Court has held in Gulzari Lal v. Madho Ram, [1904] I.L.R., 26 All, 447, S.C. 1 A.L.J.R. 65, F.B. that an auction-purchaser at a sale in execution of a simple money decree is a representative within the meaning of section 244. The respondents are, therefore, representatives within the meaning of that section, and execution can proceed as against them. The Court below: relies upon the ruling of this Court, in Bhagwati Prasad v. Jumna Prasad, [1896] I.L.R., 19 All, 136., and Sadiq Husain v. Lalta Prasad, [1897] I.L.R., 20 All., 139., and the learned counsel for the respondents also based his argument on the strength of those rulings. We do not deem it necessary to say whether or not we agree with those rulings, as in our opinion those cases are distinguishable from the present. There the persons against whom res toration was sought had acquired no interest in the decree before the appeal to the Privy Council had been filed and they had not been made parties to the appeal. It was held that as against them restitution could not be granted. That is not the case here. In the present instance the respondents acquired an interest in the property in question during the pendency of the appeal to the Privy Council and therefore took the property subject to the result of that appeal. It was held that as against them restitution could not be granted. That is not the case here. In the present instance the respondents acquired an interest in the property in question during the pendency of the appeal to the Privy Council and therefore took the property subject to the result of that appeal. They are therefore bound by the decree of the Privy Council and are consequently repre sentatives, within the meaning of section 244, against whom restitution can be sought by way of execution. We accordingly allow the appeal, set aside the order of the Court below and remand the case to that Court under section 562 of the Code of Civil Procedure, for determination of the other questions which arise in the case and for the disposal of it according to law. The appellant will have his costs of this appeal, which will include fees on the higher scale. Other costs will follow the event.