RAHIMUDDI SIRKAR Vs. LOLL MEAH

JUDGEMENT

(1.) The question raised in this case is whether the action of the plaintiff is barred by the provisions of Section 244 of the Civil P. C..

(2.) It appears that the plaintiff had brought a suit against the defendants Nos. 1 to 3, as also against defendant No. 4, for the recovery of a certain sum of money. The suit was decreed against the defendant No. 4, but dismissed against the other defendants. In execution of that decree, a certain property was attached by the plaintiff, the decree-holder, as belonging to defendant No. 4, whereupon an objection was preferred by and on behalf of the defendants Nos. 1 to 3, upon the ground that the property belonged to them. The objection was allowed by the-executing Court. Against that order, an appeal was preferred by the plaintiff; but the Appellate Court held that the order made by the lower Court being an order under Section 278 of the Civil P. C., no appeal lay to the higher Court, and accordingly it was dismissed. Thereupon, the present suit was brought to have it declared that the property in question belonged not to defendants Nos. 1 to 3, but to defendant No. 4, and it Was in this suit that the plea was raised by the defendants that it was barred by the provisions of Section 244 of the Code, of Procedure

(3.) The Subordinate Judge, in reversing the judgment of the Court of first instance, relied upon the case of Punckanun Bundopadhya V/s. Rabia Bibi (1890) I. L. R. 17 Calc. 711., being of opinion that the defendants Nos. 1 to 3 being parties to the suit previously brought by the plaintiff, the question now raised between the plaintiff on the one hand and the said defendants on the other, should have been decided under Section 244 of the Code, and therefore no separate suit would lie As to the case of Punchanun Bundopadhya, referred to by the Subordinate Judge, all we need say is that it has very little bearing upon the question we have to decide in the present case. There is, however, a, very recent decision, of this Court in the case of Raprosad Pandey V/s. Jagannath Ram Marwari (1901) 6 C. W. N. 10., which is directly i point, and, this case seems to be well supported by, among other the case of Kameshwar Pershad V/s. Run Bahadur Singh (1886) I. L. R. 12 Calc. 458. and also by the case of Kalka Prasad V/s. Basant Ram (1901), I. L. R. 23 AH. 346. And what has been held in the case of Bam Prosad Pandey is that, when an action is dismissed against one of the defendants, but decreed against the others, he should not be considered as a party to the suit within the meaning of cl. (c) of Section 244 of the Civil P. C.; that his objection to the attachment of any property claimed to be his own would fall under Sections. 278 and 280 of the Code, and not under Section .244, and that his remedy against any order passed against him would, be by a regular suit under Section 283 of the Code. The words pf Clause (c) of Section 244 may perhaps, be read as supporting, the view adopted by the Subordinate Judge; but we think that a more liberal construction than the restrictive construction that has been put upon, those words ought to be put upon them; and we think that, when a suit is dismissed against one of the parties, but decreed against the rest, that party could not be regarded as a party to the suit in relation to the execution, discharge or satisfaction of the decree within the meaning of Section 244 of the Code. That is a view Which Well accords with common sense, and, we think, we should adopt it.