Bombay High Court
Nimba Harishet vs Sitaram Paraji on 9 April, 1885
Equivalent citations: (1885)ILR 9BOM458
JUDGMENT Charles Sargent, C.J.
1. The decisions in Chowdhry Waked Ali v. Mussamut Jumaee 11 B.L.R. 149; Ameerunnhsa Khatoon v. Meer Mozuffer Hossein Chowdhry 12 B.L.R. 71; and Oseemoonnissa Khatoon v. Ameeroonnissa Khatoon 30 Calc. W.R. 162 show that the question raised in this suit was one which ought to have been raised in execution proceedings in the former suit, as provided by Section 244, Code of Civil Procedure. The decision in Abdul Rahman v. Muhammad Yar I.L.R. 4 All. 190, to which we have been referred conflicts with the above decisions; but the decision of the Privy Council in Chowdhry Wahed Ali v. Mussamut Jumaee 11 B.L.R. 149 would appear not to have been "brought to the notice of the Court. Now, as a fact, the question was raised by the plaintiff in the execution proceedings in the former suit and decided against him, and if he omitted to appeal, he cannot-rectify that omission by a separate suit-Arundadhi Ammyar v. Natesha Ayyar I.L.R. 5 Mad. 391. We must, therefore, reverse the decree of the Court below, and dismiss the plaintiff's suit, with costs throughout.