CHITTIRALA MAHALAKSHMAMMA Vs. SENISETTI HANUMAYYA AND ANR.

JUDGEMENT

(1.) THIS is an appeal against the order by the learned Additional Subordinate Judge of Guntur remanding E. A. No. 331 of 1948 for fresh disposal by the District Munsif of Narasaraopet.

(2.) THE appellant is a widow one Mahalakshmamma who was impleaded as defendant 2 in a suit filed by the respondent decree -holder on a pronote executed by her deceased father -in -law Ramakotayya, whose widow was impleaded as defendant 1. In the suit, the appellant was exonerated, with costs, by the learned District Munsif and the decree -holder obtained a decree against the assets of Ramakotayya in the hands of his widow. In execution he attached Immovable property to which the appellant laid claim in a petition under Order 21, Rule 58 and Sections 47 and 151, Civil P. C. She claimed the attached property as being her own by virtue of a purchase in execution of decree which she obtained against her own father -in -law, who had, it was alleged, taken possession of valuable moveable property belonging to her, while she was a ward of Court, and furnished security for a substantial amount. The learned District Munsif held that the appellant had prima facie title and possession and allowed her claim petition. In appeal, the learned Subordinate Judge taking the view that she was a party to the suit the decree of which was under execution remanded the claim petition for disposal on its merits under Section 47, Civil P. C. negativing the view of the District Munsif that the decree -holder's remedy was in this case by way of a separate suit to set aside the summary order on the claim petition.

(3.) THERE is a further aspect of Section 47 which requires two conditions to be satisfied in order to bring applications in execution within its scope. The first condition is that it must be a question arising between the parties to the suit in which the decree was passed. The second condition is that it must relate to the execution, discharge or satisfaction of the decree. The word "and" in this connection in Section 47(1) appears to me to be highly significant. In the present case, the question raised as between the plaintiff decree -holder and the present appellant could not have been adjudicated upon it the suit on the pronote. I entirely fail to see how an issue as between the parties which could not in any event have been decided in the suit itself and does not arise between the parties can be decided in execution proceeding by way of an application under Section 47, Civil P. C. This is an aspect of Section 47, Civil P. C. which has not been specifically adverted to in the decisions to which I have been referred. It would be opening an avenue of abuse if a plaintiff were to include as defendants in a suit, quite improperly, persons who are really unnecessary and while not being able to have any issues decided as between him and them in the suit itself, be permitted to pursue remedies against them in execution under Section 47, Civil P. C. and have them determined without the payment of any court -fee. No doubt, it is always open to the executing Court to treat any proceedings under Section 47 as a suit and, if necessary, order payment of any additional court -fee. In this case, however, it is of considerable importance as to who should be the plaintiff in the suit to be filed whether it is the appellant whose property has been attached, or whether it should be the decree -holder, who has 'prima facie' failed to show that the property attached belonged to his original debtor. I have no hesitation on the facts of this case, in restoring the order of the learned District Munsif and referring the decree -holder to a suit, if so advised. The appeal is allowed with costs throughout. Leave refused.