SECY OF STATE Vs. SHIVA DATT

JUDGEMENT

(1.) This is an execution first appeal by the Secretary of State for India and has arisen in the following circumstances: Suit No. 21 of 1929 was instituted by one Abid Husain against one Abdus Sattar in Court of the Subordinate Judge of Muttra. Abid Huaain sued as a pauper. His suit succeeded and he got a decree against Abdua Sattar for payment of little over Rs. 10,000. The decree that was passed stated that the amount of court-fee, namely, Rs. 490 and the amount of Government Pleader's fees amounting to Rs. 49 should be paid by the defendant in the suit. The decree was sold by Abid Husain to the respondents before us, Shiv Dutt and Baijnath. Shiv Dutt and Baijnatb obtained an order of transfer of the decree to the Lucknow Court, and there a house of the judgment debtor was brought to sale. It was sold for a thousand rupees and was purchased, by the decree-holders, Shiv Dutt and Baijnath.

(2.) Shiv Dutt and Baijnath instead of paying the sale consideration in cash they certified receipt of this amount which was set off against the decree. After the sale it appears, the Secretary of State was appraised of the fact that execution of the decree was going on at Lucknow, and he made an application to the Court for payment to him. The sale having taken place the learned Subordinate Judge thought that he could not but confirm it. He how ever directed that no sale certificate should issue till the money was paid, and he also directed the decree- holders to pay the money in 15 days. Shiv Dutt and Baijnath not having paid the money claimed by the Secretary of State, the latter took out execution of the decree against them in the Court of the Subordinate Judge at Muttra.

(3.) Shiv Dutt and Baijnath raised an objection to the execution, and their objection having succeeded in the Court below, this appeal has been filed on behalf of the Secretary of State. The argument of the learned Government Advocate is this : Under Order 33, Rule 10 the Secretary of State has a first charge on the subject matter of the suit. The decree passed in favour of Abid Husain being a decree for money any money realised by Abid Husain or his successor-in-title would be the subject matter of the suit. The decree-holders, Shiv Dutt and Baijnath, having purchased the property of the judgment-debtor for a thousand rupees, they in substance, paid the sum of thousand rupees into Court and also took away the same.