Allahabad High Court
Abdul Hayai Khan vs Chunia Kuar on 21 May, 1886
Equivalent citations: (1886)ILR 8ALL377
JUDGMENT
Oldfield and Brodhurst, JJ.
1. This appeal was on the part of a judgment-debtor against the decree-holder, and was heard and decided on the 25th November 1885. It has been admitted for re-hearing. It appears the decree, as it originally stood, was for Rs. 1,282-5-6. Subsequently, on application by the decree-holder, the Court which passed the decree, purporting to act under Section 206 of the Code, altered the decree and made it for a sum of Rs. 1,460-14-0. The decree-holder took out execution, and the judgment-debtor objected that the decree was for Rs. 1,282-5-6 and had been improperly altered. The objection was disallowed. On appeal to the Judge that officer affirmed the order, and the judgment-debtor has preferred a second appeal to this Court.
2. We think our original order of the 25th November 1885 must stand. The decree, as it originally stood, was in accordance with the judgment. The Court had no power to alter it as it did, and the proceeding is further irregular, in that no notice was given to the opposite party as required by Section 206. But a further contention on the part of the decree-holder is, that a question of this kind cannot be entertained in the execution-department; that the decree must stand as altered, and is not open to an inquiry whether it was properly altered when proceedings in execution are being taken. In our opinion this contention is not valid. We think that when a decree-holder executes his decree, a judgment-debtor is competent to object that the decree is not the decree of the Court fit to be executed, and therefore not capable of execution; and we think he could in this case raise the question whether the decree, which was altered behind his back, was a valid decree and fit to be executed. On these grounds our order on this application is similar to the order we made in November 1885. setting aside the execution proceedings with costs.