Judgement

This appeal was brought from a Decree of a Division Bench of the High Court, which reversed the Decree of the Principal Sudder Ameen of Dinagepore, and dismissed the suit which had been [@ page M.I.A. 530] instituted by Mooktakashee Dabee, the then Manager of the estate of Sreenath Sannyal, a Lunatic, now represented by the Appellant as Manager.

Mooktakashee Dabee, the Wife of the Lunatic, and the Respondents were Purchasers at sales in execution of their respective Decrees of the right, title, and interest of the Respondent, Jodoonath Sannyal, in the lands situate in Zillah Dinagepore, which were the subject of the suit. The purchase of Mooktakashee Dabee by priority of date was not disputed, and the question which arose in the suit was, whether that purchase was a nullity under the provisions of the Civil Procedure Code Act, No. VIII of 1859, sects. 235, 240, 256, 284, 285, 286, 287, & 288 (These sections are referred do in their Lordships judgment, post, pp. 533-40.). The principal Sudder Ameen (Mr. S. Wright) held that the sale was valid. On appeal to the High Court, a Division Bench composed of the Justices Kemp and Jackson at the first hearing held such sale to be a nullity, but afterwards, on review, the Judges differed in opinion, Mr. Justice Jackson being of opinion, that the Appellants purchase was a valid purchase, and Mr. Justice Kemp, the Senior Judge, adhering to his former opinion that the sale was a nullity. A Decree was drawn up according to the opinion of the [@ page M.I.A. 531] Senior Judge, from which Decree the present appeal was preferred.

The facts, so far as is necessary to state them, were these — In the year 1862, Mooktakashee Dabee, the Wife and Manager of the Lunatic, with the Respondents, Jodoonath Sannyal and another, obtained Decrees in the Court of the Principal Sudder Ameen of East Burdwan for a share in certain zemindaries, and a sum of money exceeding two lacs of Rupees. When she sought to execute this Decree, a question was raised under the terms of the Decree as to her right to do so without being appointed Trustee by the Court and giving security. She accordingly applied to the Court which passed the Decree, and tendered security sufficient to cover the value of the lands decreed to her as Manager of her Husband, and stated her intention of tendering further security to cover the sum that might be realized by the execution sale of the properties of the judgment-Debtor, and prayed to be declared Trustee of the lands and to have possession. The Court appointed her Trustee, and directed her to give security for the money that would be realized by the sale of the properties of the Debtor. Execution was accordingly issued, and Mooktakashee Dabee, from time to time, sold, under the Decree, properties of the Judgment-holder within the jurisdiction of the East Burdwan Court, and became Purchaser at the sales, setting off the purchase-money and giving security prior to taking possession. Having exhausted the effects of the Debtor in Zillah East Burdwan, she applied in March, 1864, to the Court of the Principal Sudder Ameen of [@ page M.I.A. 532] East Burdwan, for a certificate under the 284th and 285th sections of the Civil Procedure Act, for an attachment of the pro perties of the Debtor in Zillah, Moorshedabad, with a view to prevent alienations of other properties in Zillahs, Hooghly and Dinagepore. The Principal Sudder Ameen of East Burdwan, after inquiring into the

14 M.I.A. 529( 1871- 1872) Saroda Prosaud Mullick V. Luchmeeput Sing Doogur 62

securities previously given, granted the certificate required by section 285, which was to the effect that, after realization of the amount of Rs. 2,690, there remained an unsatisfied balance of Rs. 2,33,452, and ordered that a copy of the Decree and certificate of the Court, with specifications of the properties in Zillahs, Moorshedabad, Hooghly, and Dinagepore, should be sent to the Judges of each of those Districts, directing the Judge of Moo