MUTHUSAMI MUDALY Vs. AYYALU BATHADU

JUDGEMENT

(1.) The first contention relied upon by the appellant (the 9 defendant) was that by reason of an order (Exhibit I made under Section 280 of the Civil P. C. in proceedings in which one Subraya Pillai was the judgment creditor, Subraya Chetty (the plaintiff's vendor) was the judgment-debtor, and the appellant was the claimant, the plaintiff's suit, as against the appellant (9 defendant) is barred by Section 283 of the Civil P. C.. An order under Section 280 is conclusive as against the party against whom it is made unless a suit is brought within the prescribed time to establish the right claimed to the property in dispute. In the present case no suit was brought within the prescribed time. The question therefore is-- was the order allowing the claim of the appellant made under Section 280 an order made against Subraya Chetty (the judgment-debtor) within the meaning of Section 283. We think the test to apply is that laid down in Guruva V/s. Subbarayndu I.L.R. 13M. 366.

(2.) The judgment-debtor may be the party against whom an order upon a claim in execution proceedings is made so as to be bound there by. Whether he is such a party or not must depend upon the facts of each case, i.e., the circumstances in which the order is made and the terms of the order itself. The case of Guruva V/s. Subbrayadu I.L.R. 13M. 366 was decided in 1890, and the attention of the learned judges who decided that case was apparently not called to the Privy Council decision in the year 1888 in Sardhari Lal V/s. Ambika Pershad I.L.R. 19 C. 521. But the observation of their Lordships of the Judicial Committee on which the respondent relied, when read with its context does not seem to us to be inconsistent with the rule laid down in Guruva V/s. Subbarayudu. We do not think the judgment of the Full Bench in Damederan Nambudry V/s. Parameshwaren Nainbudry 4. M.H.C.R. 472 precludes us from holding, on the facts of this case, that the order in the execution proceedings is not conclusive as against the plaintiff. The notice which was served on the judgment-creditor was merely to show cause why the sale should not be stayed until the claim was disposed of (Exhibit VI). There is a conflict of evidence as to whether this notice was in fact served on the judgment- debtor (Subraya Chetty). There is no doubt, however, that the judgment-debtor attended the proceedings and gave evidence (see Exhibit IV). He is described as the first witness for the defendant; and in his evidence he describes himself as the defendant. The order recites that the application was made in the presence of the Vakil for the judgment-creditor and the Vakil for the claimant, but does not recite that it was made in the presence of the defendant. The order states that the claimant has been in possession, and the defendant has not, but does not refer to the question of title. The claim was allowed and the judgment creditor was directed to pay the claimant's costs, Having regard to the inconclusive character of the evidence as to service of notice on the judgment-debtor, to the fact that it does not appear on the face of the order that the judgment-debtor appeared as a party at the proceedings in which the order was made and to the fact that the terms of the order are not necessarily inconsistent with the title being in the judgment-debtor we think the order cannot be said to have been made against the judgment-debtor within the meaning of Section 283.

(3.) The second contention relied on by the appellant was that at the time of the sale by Subraya Chetty to the plaintiff, Subraya had parted with his interest in the property in question and could confer no title on the plaintiff.