McElwaine, CJ (SS)

The facts of this case are sufficiently set out in the Judgment of Terrell, J.A., I need nor repeat them.

I think the appellant must succeed on his objection that the proceedings before Home, J. were a nullity. That point was not taken in the Court below.

Section 272 (i) of the Civil Procedure Code enacts "the following questions shall be determined by order of the Court executing the decree and not by separate suit, namely-(c) any other questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the executions".

This action clearly related to the execution. It was brought by one of the judgment debtors against the judgment creditor and was founded upon allegations which, if substantiated would have shewn that the execution was improper.

The fact that the auction purchaser was made a party makes no differences. Prosunno Coomar Sanyal v Kasi Das Sanyal 19 IA 166. That case decided that a fresh suit could not be brought even by adding the auction purchaser as a party.

Here we have not only a fresh suit but a fresh suit brought in a Court which had nothing to do with executing the decree, and this second irregularity appears to me fatal even if a suit in the Magistrate's Court might have been condoned on terms as to costs, a point I desire to leave open.

If the appeal succeeded on this point alone I would not be disposed to allow the costs of the appeal because had the point been taken in the Court below it would probably have concluded this costly litigation.

It is necessary therefore to consider some other points raised by the appellant.

It was conceded that if an instalment order made on a judgment debtor summons was in force, it was while in force, a bar to the attachment and sale of the respondent's land.

Such an order was made on the 21st June 1933 under which Chotai was ordered to pay $5 a month, the respondent to pay $2 a month and one Untang to pay $1 a month, these three persons being three of the four defendants in the suit brought by Meyappa.

On the 7th October 1937 Meyappa issued a notice in the Port Dickson suit to the four defendants calling upon Chotai, the respondent Doyak and Untang "to shew cause why defendants should not pay monthly instalments of $8, $6, and $6 respectively per mensem or, in the alternative the aforesaid order against the second defendant (i.e. Chotai) may be rescinded to enable me (meaning Meyappa) to attach and sell the land held under Pasir Panjang E.M.R. No. 332 the title whereof is deposited with me as security".

This title related to land belonging to Chotai. Now this application clearly asked that the respondent should be ordered to pay more than $2 a month. It did not ask that the instalment order against him should be set aside. The parties appeared before the magistrate who on the 20th October I937 made the following note on the Court file "Application allowed former order rescinded". There is nothing to indicate that the application before the Court had been amended to include rescission of the order against the respondent, nor would such amendment have been obviously necessary because at that date only $177.50 was due as principal to which was to be added some sum as interest and $14.10 costs. Chotai's land was of some value-it was subsequently sold for $270. No formal order was drawn up. The meaning of this note was much agitated in the Court below and before us.

"Application allowed". What was the application which was allowed? It was clearly an application in the alternative, either that Chotai, Doyak and Untang should be ordered to pay larger instalments than they had been paying under the order of the 21st of June 1933 or that the order of the 21st June 1933 should be rescinded so far as it affected Chotai. The application clearly did not ask that the instalment order of the 21st June 1933 should be rescinded so far as it affected Doyak and Untang. The words "former order rescinded" appear to m

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