Guruvayya and ors. Vs. Vudayappa

code of civil procedure - act xiv of 1882, sections 244 and 258--payment to decree-holder out of court--whether an order having been made under section 258, a separate suit on the subject--matter thereof lies. - - 538. the ground of decision in the madras cases was that the question was not whether the decree had been satisfied and satisfaction should be recorded, but whether there had been a fraudulent breach of contract which had not formed the subject of inquiry in the suit or in the execution proceedings.1. in the full bench cases decided in this court viraraghava v. subbakka i.l.r. 5 mad. 397 and mallamma v. venkappa i.l.r. 8 mad. 277 it does not appear that any question as to the satisfaction of the debt out of court was raised in the execution proceedings. so also in the case of sita ram v. mahipal i.l.r. 3 all. 533 and shadi v. gang a sahai i.l.r. 3 all. 538. the ground of decision in the madras cases was that the question was not whether the decree had been satisfied and satisfaction should be recorded, but whether there had been a fraudulent breach of contract which had not formed the subject of inquiry in the suit or in the execution proceedings.2. here, however, the question of payment oat of court did form the subject of inquiry in execution proceedings. though an order under section 258 is not made appealable under section 588, it is appealable under section 244, being made on a question arising between the parties to the suit, and falling under the definition of 'decree.' the view taken in lingayya v. narasimha i.l.r. 14 mad. 99 coincides with that taken in ghazidin v. fakir bakhsh i.l.r. 7 all. 73; ranji v. bhaiji harjivan i.l.r. 11 bom. 57 and has been again followed in tamna prasad v. mathura prasad i.l.r. 16 all. 129 no separate suit will lie, since the question whether the payment has been made is res judicata between the parties.3. the decrees of the courts below must be confirmed and this second appeal dismissed with costs.