FRANCIS Vs. JOSEPH SKARIA

JUDGEMENT

(1.) The question for consideration in this petition is whether a defendant against whom no relief is claimed, or granted by a decree, is a "party" to the suit within the meaning of sub-s.(1) of S.47 of the Code of Civil Procedure. The question arises out of the facts stated in paragraph No.2 below.

(2.) The petitioner, Francis, was defendant No.3 in O.S.No.73 of 1982 instituted by Joseph Scaria, the plaintiff respondent. A decree for specific performance of contract of sale dated 16-2-1976, was made on 22-12-1984. The decree was only against the defendant No. 1 a sister of the plaintiff. The defendant No.2 was sued as an agent of the defendant No. 1. The decree directed the defendant No. 1 to execute conveyance of the suit property upon the plaintiff depositing the consideration.

(3.) Under sub-s.(1) of S.47 of the Code of Civil Procedure (hereinafter referred to as the Code) all questions arising between "the parties to the suit in which the decree was passed" and relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit. Two essential ingredients of sub-s.(1) of S.47 of the Code are: (i) the question, like the one raised in this petition, is a question relating to the execution discharge or satisfaction of the decree and (ii) the question has arisen between the parties to the suit in which the decree was made.