Singh S W. R., VIII. 24; also Bhikarji Vithal Ambekar, Bom. H. C. R. (A. Č.) IV. 119. (3) An intervenor who had been made a codefendant in the first case, and land in whose possession had been exempted, but against whom on appeal costs were awarded. Hurry K. Roy v. Kalee K. Sein. S. W. R. VIII. 114. (4) The assignee of a decree approved of under sec. 232. Balkishun v. Muhammad Tazam Ali. N.-W. P. 1872, p. 90; also Rugonundun Raen v. Someshur Panday, B. L. R., XIII. A. C. 489. The following have been declared not to be "parties." (1) Rival decree-holders who had obtained separate decrees against the same judgment-debtor, and who were made parties after rateable distribution of attached property on appeal by the first creditor, who claimed to be paid in full. Dendial Sahov. Radha M. M. Dass. S. W. R., IX. 223. (2) A person who was made a party to a suit, but dismissed from it before decree was given. Gour K. Chaudhri v. Muhammad H. Chaudhri, ib. X. 191. (3) Where A. obtained a money-decree against B., declaring certain properties belonging to B. liable to be sold in satisfaction of it, and other decrees were subsequently obtained against B., in execution of one of which certain of these properties were sold (subject to the lien) and purchased by A. himself; and in execution of another, certain others were sold (also subject to the lien) and purchased by C: on A's proceeding to execute his own decree against B., C. sought to have it declared that satisfaction should be entered upon it to the extent of the property purchased by A. Held that he could not appear in the proceeding. Grija B. Mitter v. Kishen K. Ghose, ib. VIŤ, 221. (4) An intervenor in a case like the following: The first Court gave a decree to the plaintiff for possession of land against A., the original defendant in the suit, but exempted land in the possession of B, an intervenor whom the Court had made a co-defendant. The appellate Court reversed so much of that decree as adjudicated upon the claim as between the plaintiff and B., and confined its decree for possession against A., but awarded costs against B. Held that B. continued to be a defendant in the suit, and had a right of appeal. Hurree Kishore Roy and others v. Kales Kishore Sein and others. ib. VIII. 114. (5) Purchasers of a decree are not parties to a suit; they can only be heard under sec, 331, 332. Umrit Lal Rajpai v. S. P. B., ib. 1864, Mis. 35; Mohesh Chandar Banarji 7. C. M. Debia. ib, IX. 486, "Questions arising between the parties to suit," cannot be limited to questions arising between those who were parties to the suit at the date of the decree, but after decree the representative of a decreeholder, or the representative of a defendant against whom an execution is sought under secs. 234 and 248 of the Code, become parties to the suit for the purpose of execution. Buddhu Ramaya v. C. Venkayauma, M. R., III. 4. C. 263. Held in special appeal that the terms of this section do not prohibit an appeal by a representative of a deceased judgment-debtor against an order passed in execution of a decree against his ancestor. Bishtu Narayan Bandopadhya v. Gunga Narayan Biswas, B. L. R. III. A. C. 40; 9. W. R., XI. 368. An objection that land upon which certain buildings stand is not comprised in a decree against a judgment-creditor, who is seeking to obtain possession and pulling them down, falls under this section. Radha Gobind Shaha v. B. C. R, Chaudhri, S. W. R., VII. 372. Where a minor sued in order to determine that the execution of a decree acquired by other persons during his minority was barred by lapse of time, it was held that a suit would not lie. Sheikh Najabat Ali v.Sheikh Moha Busseroolah Chaudhri, B. L. R., XI. 42. The question must relate to something included within decree, Eckowri Singh v. Byjonath Chatterjee, S. W. R., XII., as the discharge of prisoners, Yeshwant Rao A. Jamin v. Ismail Ali Khan, Bom. H. C. II. p. 94; or an application to correct an error about the calculation of interest. Amanut Ali v. Bundoo, S. W. R., XIII. 138. A question raised for the first time between the parties to a decree at the time of its execution, although not expressly reserved in that decree for determination at the time of its execution, may be determined by the Court executing the decree, Janoji Banaji, v. Venkatesh Shrinivas. Bom. H. C. Rep., II. 371. See also Amir-oonnissa Khatoon v. Meer M. H. Chaudhri. B. L. R., XII. 65. (n) A person who was not a party to a suit in which a decree for costs and mesne profits was pronounced, but subsequently acquired an interest by gift, cannot be made liable for the costs and mesne profits so decreed, and the decree so passed cannot be executed against him. Mashook Ali Khan and others v. Jwala Bakhsh. Agra Rep., III. 193. In 1827 8. commenced a suit against B., and before judgment, applied for and obtained, under Regulation II. of 1806, an attachment of certain immoveable property bolonging to the defendant. In 1828 8. *See p.16 1. +S. 223. *S. 231. Provided that, in the case of a decree for money, the value of the property attached shall as nearly as may be correspond with the amount for which the decree has been made. Cross-decrees. M. 246. (209) If cross-decrees between (O)* the same parties for the payment of money be produced to the Court, execution shall be taken out only by the party who holds a decree for the larger sum, and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction on the decree for the smaller sum. If the two sums be equal, satisfaction shall be entered upon both decrees. Explanation 1.-The decrees contemplated by this section are (a) decrees made by the same Court, (b) decrees sent to the same Court for execution, and (c) decrees of which one is made by the Court and the other is sent to the same Court for execution; but not (d) decrees of which one is made by one Court and the other is made by another Court, and not sent for execution to the former Court. Explanation II.-This section applies where either party is ant assignee of one of the decrees and as well in respect of judgment-debts due by the original assignor as by the assignee himself. Explanation III.-This section does not apply unless- (f) the decree-holder in one of the suits in which the (g) the sums due under the decrees are definite. Illustrations. (a) A holds a decree against B for Rs. 1,000. B holds a decree against A for the payment of Rs. 1,000, in case A fails to deliver certain goods at a future day, B cannot treat his decree as a cross-decree under this section. (b) A and B, co-plaintiffs, obtain a decree for Rs. 1,000 against C, and C obtains a decree for Rs. 1,000 against B. C cannot treat his decree as a crossdecree under this section. (c) A obtains a decree against B for Rs 1,000. C, who is a trustee for B, obtains a decree on behalf of B against A for Rs. 1,000. B cannot treat C' decree as a cross-decree under this section. M. 247. When two parties are entitled under the same decree to recover from each other sums of different amounts, the party entitled to the smaller sum Cross-claims under same decree, obtained a decree, upon which he did nothing immediately; but in 1844 he sold the attached property in execution, and purchased it himself Thirteen years after B. commenced proceedings to set aside that sale, and in 1860 obtained a final decree reversing the sale, restoring to him the possession, and awarding him mesne profits. The mesne profits were ascertained, and a third party (R.) attached the decree in respect of a judgment debt due to himself from B. Upon this S., after trying ineffectually to stay R's proceeding, brought a suit claiming to set-off the amount of the decree of 1828 against the decree of 1560. Held that whatever equitable right S. might have in consequence of the situation of the parties, it should have been urged in the suit before decree, and not in execution when rights of third parties had accrued; and that what R. sought was not the mesne profits attached by S under the decree but the amount decreed to be paid by S to B. Ram Coomar Ghose v. Gobind Nath Sandyal and others. S. W. R XII. 391. (0) The Judge allowed the execution of a decree by a person who was not a party to the suit. Held that the actual decree-holder had no right of appeal against the summary order of the Judge in favor of the said person, but that her remedy was to apply to the Judge for a review of his or der. Obhoychurn Ghose v. Allad Monee Dassia, S W. R., I. Mis., 23. When money has been taken in execution of a decree which is subsequently revers ed or modified, no fresh suit will lie for its recovery; the matter must be enquired into by the Court which passed the decree as a question arising between the parties relating to the execution of such decree. Saligram Singh v. Gobind Sahai, ib. IV. 64, et passim. E. Of the mode of executing Decrees. A Court on receiving an application for execution should see whether the particulars mentioned in sec. 335 are duly set forth, and that it is accompanied by an inventory when necessary; otherwise it shall be (i) rejected; (ii) returned for amendment or addition; or (iii) amended then and there. All amendments must be attested by Judge's signature. On admission, a note shall be entered in the register of the suit of application, and its date and execution ordered accordingly. In attachment for money decrees, value of property attached to correspond with amount of decree. In the case of cross decrees between same parties (assignees included) for payment of money, execution can be taken out by the one who holds a decree for the larger sum, and only for what remains after deducting the smaller sum. An entry of the satisfaction obtained respectively should be entered on both decrees. Cross decrees are decrees (i) made by the same Court. (ii) sent for execution to the same Court, (iii) one made and the other sent for execution to the same Court. Both decrees must be capable of execution at the same time; the decreeholder in one, the judgment-debtor in the other, each party filling the same character in both suits, and the sums due being definite. Cross claims under the same decree are to be treated as cross decrees. Notice to show cause why decrees should not be executed must be issued when more than one year has elapsed between date of decree (or, of decree passed on appeal, or last order against judgment-debtor passed on previous application for execution) and application for execution; or, if application be for execution against legal representative of original judgment-debtor, unless such representative have already been proceeded against. After notice, execution can be enforced unless cause to the contrary be shown. Warrants for execution must be dated on the day of issue, signed by the Judge or officer appointed, sealed with the Court's seal, and delivered to the proper officer. They must contain a day for return. By that day they should be returned with endorsement of day on which, and manner in which, they have been executed, or reasons for which execution has failed. Decrees against a legal representative for money to be paid out of property of deceased may be executed by its attachment and sale; or when none such can be found, and representative fails to satisfy Court as to its due disposal, as though they had been granted against him originally, to the extent of the property misapplied. A dec ree against a surety for its performance, entered into before its passing, may be executed against him as against original defendant, to the extent of liability undertaken, provided sufficient notice has been given in writing to surety. All decrees for money may be enforced by imprisonment of judgment-debtor or attach ment and sale of his property, or both. If decree be for mesne profits or other matter, the amount of which is subsequently to be ascertained, judgment-debtor's property may be attached before such ascertainment, as in case of ordinary money decree. If decree be for money not exceeding Rs. 1,000, immediate execution may be granted, on oral application, against person or moveable property of judgment-debtor, if he or it be within local limits of Court's jurisdiction. S. 66. +See. n. (x.-z.) p. 148. 18. 223. §See. p. 163. shall not take out execution against the other party, but satisfaction for the smaller sum shall be entered on the decree. When the amounts are equal, neither party shall take out execution, but satisfaction for each sum shall be entered on the decree. M, 248. (216) The Court shall issue a notice to the Notice to show cause why party against whom execution is decree should not be exe applied for, requiring him to show cause, within a period to be fixed decree should not be executed against cuted. by the Court, why the (a) if more than one year has elapsed between the date of the decree and the application for its execution, (b) if the enforcement of the decree be applied for against the legal representative of a party to the suit in which the decree was made: Proviso. Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution, if the application be made within one year from the date of any decree passed on appeal from the decree sought to be executed or of the last order against the party against whom execution is applied for passed on any previous application for execution, or in consequence of the application being against the legal representative of the judgment-debtor if upon a previous appplicationt for execution against the same person the Court has ordered execution to issue against him. Explanation. In this section the phrase "the Court" means the Court by which the decree was passed, unless the decree has been sent to another Court for execution, in which case it means such other Court. Procedure after issue of M. 249. (217) If the person to whom notice is issued. under the last preceding section does not appear p)Sor does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed. notice. If he offers any objection to the enforcement of the decree, the Court shall consider such objection and pass such order as it thinks fit. M, 250. (221) When the preliminary measures (if any) required by the foregoing provisions Warrant when to issue. have been taken, the Court, unless it sees cause to the contrary, shall issue its warrant for the execution of the decree. All moneys payable under a decree should be paid into Court executing it, or out of Court to decree-holder, or otherwise as Court directs. The law now renders it imperative on a decree-holder to certify all adjustments to the Court executing the decree. If he fails, the judgment-debtor can apply to Court for order compelling him to certify, Court, after hearing decree-holder, may make such order, and if he disobey, refuse further to execute the decree. Decrees for specific moveables, and recovery of wife, may be enforced by seizure of moveable, and delivered to person adjudged (or person appointed to receive delivery on his behalf), or by imprisonment of judgment-debtor or attachment of property, or both, until further orders. After six months, if obedience is still refused, property may be sold, compensation made to judgment-creditor out of proceeds, and balance, if any, given to judgment-debtor. Decrees for specific performance, restitution of conjugal rights, or performance of particular act, may, if wilful disobedience be made after opportunity for fulfilment, be enforced in the same way, save that attachment may in their case be continued for one year. The limit to imprisonment is six months, see sec. 342. Decrees for execution of conveyance or endorsement of negotiable instruments may, on refusal by judgment-debtor, be executed by the Court, provided the draft of such conveyances, &c., has been duly served, and time allowed for objections. Executions of such conveyances, &c., by a Court have the same effect as executions by the judgmentdebtor. Decrees for immoveable property are executed by delivery of its possession, and, if need be, removing any one bound by the decree who refuses to vacate. If the property be in occupancy of a tenant or other person authorized to occupy, then a copy of the warrant has to be affixed in a conspicuous place on the property, and the substance of decree to be communicated by beat of drum. Decrees for partition or separation of share of undivided property have to be made by the Collector. (N) If an application is irregular only in form The F. B. ruling, Qaim Ali Java Das v. The right of set-off in the case of two cross decrees is not affected, where the assignment of one of them has been found to be fraudulent, Syud Tulub Hussein v. R. Walker. S. W. R., VII. 170. If the Judge have before him no appli cation to execute drawn up in accordance with sec. 235, he is bound to refuse to proceed upon an application to give notice to judgment-debtors. Poorna C. Mookerjee v. T. C. Roy, ib. XI. 241. If a plaintiff seeks damages on the ground of an omission to give him notice under this section of the sale of his property in execution of a prior decree against him, it lies upon him to show that notice was not given to him. Kashee Nauth Roy Chaudhri v. Hullodur Roy. ib. II. 60. (p) Where a person appeared by pleader and filed an objection for the hearing of which the Court neglected to fix a day. : Held that the Judge should have considered the objection even though the objector did not appear again. Rajballab Sahu v. Ramsaday Ghose, B. L. R., V. 65. (2) The Nazirs return is no legal evidence of the service of process. Kundun Lall v. (r) Note distinctly the words before the decree cannot summarily oust a person The claim of a petitioner to represent a deceased person for the purpose of executing a decree made in favor of the deceased, ought not to be rejected, but the Judge should call upon the plaintiff |