JAMALUDDIN Vs. ASIMULLAH

JUDGEMENT

(1.) THIS second appeal arising out of execution proceedings was referred by a learned single Judge of this Court to a Bench on account of some impor tant point involved therein. .The brief facts giving rise to this appeal were that the res pondents Azimullah and others brought a suit under Section 6 of the Specific Relief Act, 1963 against Jamaluddin and others appellants for possession over plot No. 545/3 measuring nine biswas. That suit was decreed. The decree-holders put that decree in execution and obtained possession over a piece of land describing it to be plot No. 545/3. An objec tion under Section 47 of the Code of Civil Procedure was filed by the judgment-debtors alleging that the land on which possession was actually delivered to the decree-holders was constituted by plot No. 545/1 which was not the subject-matter of that suit under Section 6 and it belonged to them independently of the decree passed in favour of the respondents. The execution Court issued a commission and after taking into consideration the relevant facts came to the conclusion that the land over which possession had been delivered to the decree-holders was the same in respect of which the decree had been passed and which was numbered as 545/3 though subsequently its number was changed to 545/1. After this finding the objection under Section 47 raised by the judgment-debtors was dismissed.

(2.) THE judgment-debtors then filed an appeal before the District Judge which was dismissed and thereafter they filed this se cond appeal.

(3.) IT was, however, argued by the learned counsel for the appellants that the appellants would be without a remedy in view of the provisions contained in sub-section (1) of S. 47, if they are not allowed to challenge the correctness of the order passed by the execution Court in appeal. Sub-section (1) of S. 47 lays down that all questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satis faction of the decree, shall be determined by the Court executing the decree and not by a separate suit. In our opinion the words "not by a separate suit" refer to a suit of the nature in which the decree under execution itself has been passed. They do not refer to a suit of a different nature which is permitted by sub-section (4) of S. 6 of the Specific Relief Act 1963 itself. This sub-section lays down that nothing in this section shall bar any per son from suing to establish his title to such property and to recover possession thereof. If the decree that is passed under Section 6 is itself open to challenge by a regular suit permitted by sub-section (4), there is no re ason to think that an order passed in connec tion with that decree on the execution side under Section 47, Civil P. C. would be a final order and not open to challenge by a similar regular suit. Of course, a suit under Sec tion 6 of the Specific Relief Act cannot be filed to challenge an order passed under Sec tion 47 (1) of the Code of Civil Procedure. But a regular suit to challenge that order or for that matter to challenge the decree itself passed under Section 6 of the Specific Relief Act, would not be barred. To that extent the provisions of the general law contained in Section 47 (1) shall be deemed to have been overridden by the special law contained in sub-section (4) of S. 6 of the Specific Relief Act. So it is not correct to say that the ap pellants would be without any remedy if their appeal against the order passed by the execu tion Court under Section 47 (1) is not enter tained,