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1922 Supreme(Lah) 143
Lahore High Court
Shadi Lal, J.
Piara Ram - Appellant
Versus
Ganga Ram - Respondent
Decided On : 28-06-1922
JUDGMENT
Shadi Lal, C J - The facts of this case are briefly as follows:In execution of a decree obtained by one Masta Ram against Shada, the decree-holder attached a debt-alleged to be due by the defendant, Piara Ram, to the judgment-debtor, Shada. It appears that Piara Ram raised an objection that no debt was due by him to Shada, but the Executing Court did not accede to the objection and passed an order advertising the sale. In November 1920 the plaintiff, Ganga Ram, purchased the debt at the auction-sale, and has now brought this suit for the recovery of the money against Piara Ram.
2. The Trial Judge holds, that, as the defendant, Piara Ram, did not bring a suit within one year in accordance with the provisions of Order 41, Rule 63, Civil Procednre Code, he is precluded from urging that no money was due from him to Shada. The learned Counsel for the defendant contends that the statutory period of one year had not expired when his client denied in the written statement his liability to Shada, and that it is not necessary that he should have filed a suit in order to establish his contention. But, as pointed out in Mulla's Civil Procedure Code, 7th Edition, page 615 unless a suit is brought, as provided by Rule 63. the party against whom the order is made cannot assert, either as plaintiff or as defendant in any other suit or as a party to any other proceedings the right denied to him by the order. Further it has been held in Tayabali v. Atmo Ram [19141 38 Bom. 631 that the procedure laid down in Rules 58 to 63 applies to a debt attached in execution of a decree, and that an order made against the alleged debtor is binding upon him if he dots not institute & suit for a declaration that no debt was due from him, within a year from the date of the order passed, against him.
3. For the aforesaid reasons, I am of opinion that no ground for my interference has been established. The application for revision is, therefore, dismissed with costs.
