A judgment creditor does not automatically gain a right to the property of the judgment debtor by virtue of the judgment; the proper mode of enforcing a decree is through execution and attachment as prescribed by the Civil Procedure Code.

Judgement

APPEAL from a judgment and decree of the Judicial Commissioner of Oudh (January 20, 1873), reversing the decree of the Commissioner of the Lucknow Division (September 6, 1872), which had reversed the decree of the Civil Judge of Lucknow (June 3, 1872), which said last-mentioned decree was entirely in the Respondents favour.

The suit in which these several decrees were made was instituted by the above-named Appellant, under the circumstances stated in the judgment of their Lordships, against the Respondents (the heirs of one Ishri Dass), as Defendants, to recover an alleged unsatisfied portion of the amount of a decree which the Plaintiff had obtained against one Jaidyal alone on the 20th of November, 1863, on the ground that the said judgment debtor, Jaidyal, one of the sons of Ishri Dass, was entitled to a share in the property left by his deceased father, which the Appellant alleged had come into the possession of the Respondents.

The Court of first instance dismissed the suit on the grounds —

1. 1. That the evidence proved that the judgment debtor had secured the benefit of the Insolvent Debtors Act (11 & 12 Viet, c. 21), and had included the present debt in his schedule then filed, and that this operated as a bar to the present suit (sect. 61).

2. 2. That the suit was also barred under sect. 7, Act VIII. of 1859.

The Court of First Appeal (the Commissioner, Lucknow Division), after overruling all the points as to the suit being barred, held that these Respondents had deliberately evaded the process of the Court, and that therefore they must take the consequences under sect. 170, Act VIII. of 1859; accordingly he gave the Appellant a decree for the full amount of the claim.

The Judicial Commissioner of Oudh (acting under the powers conferred by sect. 17, Act XXXII. of 1871) held that the Appellant had assumed a position under the said decree which it did not entitle him to assume, that he had failed to prove that the decree had not been satisfied at Calcutta, or that the said decree which had been transferred to Calcutta High Court, had ever been re-transferred according to law, that he had also failed to prove that these ^Respondents are the legal representatives of the said judgment debtor, and otherwise failed to give any evidence whatever in support of his claim. He therefore dismissed the suit, with costs of all Courts.

The material portion of the Judicial Commissioners judgment is as follows—

" But the Court has no hesitation in declaring that Plaintiffs suit must be dismissed. The fact is, Plaintiff is endeavouring to obtain satisfaction of a decree in an irregular manner. The counsel for the Plaintiff, fully realizing the hopelessness of Plain tiffs claim as laid in the Court of first instance, urged upon the Court that Plaintiffs suit should either be accepted as a proceed ing in execution of a decree, or as a suit to establish his right to proceed against certain property of his judgment debtor collusively and fraudulently held by the Defendants. In support of the first view of the case, it was urged that Plaintiff having established a right under his decree was at liberty to have recourse to a regular suit to enforce that right in preference to resorting to summary procedure. The Court cannot accept this contention. Whatever right Plaintiff possessed under his decree was against Jaidyal. That right abated on Jaidyal’s death, and if the Plaintiff wished to enforce the right against JaidyaVs representatives, he was bound to proceed in the manner prescribed by sect. 210, Civil Procedure Code. If every decree-holder could proceed by regular suit to enforce his decree, all the provisions in the Civil Procedure Code, in regard to executions of decrees, would be of no avail. But it is evident to the Court that where the Legislature has prescribed a particular mode of enforcing a right created by a decree, the possessor of that right is bound to follow the procedure prescribed, and no other. But even if the Cou