RAMKESHWAR PRASAD Vs. BABU GIRJA PRASAD

JUDGEMENT

(1.) THIS is an appeal by defendants 10 to 16 to a partition suit against an order dismissing their application for amendment of the executable order passed in favour of the pleader commissioner.

(2.) IN a suit for partition, a preliminary decree was passed, and, after the preliminary decree, a pleader commissioner was appointed to make takhta-bandi. It appears, after the takhtabandi had been made, the appellants filed certain objections to the report of the pleader commissioner, and, thereupon, the Court ordered reshuffling of the allotment, but directed that the cost of the same will be entirely borne by these appellants. After that, the appellants were directed to deposit a sum of Rs. 1,200/- as commissioner's fee. They deposited Rs. 1,200/-; but as the final bill of the commissioner was passed for Rs. 2,187/-, the Court, by order dated 28th March, 1947, directed the appellants to deposit the balance, namely, Rs. 987/-. The report of the pleader commissioner was confirmed on 30th June, 1947. It appears, the pleader commissioner submitted another bill for Rs, 200/-, and a third one for Rs. 32/-. On 26th September, 1947, the Court consolidated all the pending bills of the commissioner, according to which these appellants had to pay a sum of Rs. 1,219/-, and the Court passed the bill of the commissioner for Rs. 1,219/-, and directed that the defendants 10 to 16 should pay the amount within a month from that date, failing which the pleader commissioner was to realise the amount by execution together with future interest at 6 per cent, per annum from the date of the order, namely, 26th September, 1947. The money not having been paid, the pleader commissioner took out execution sometime in the year 1949. Thereafter, these appellants filed an application on 20th December, 1950, which was headed as being one under Sections 47 and 151 of the Code of Civil Procedure, with a prayer which I would like to quote:

(3.) I think, the preliminary objection is not without substance. Appeal can possibly lie only under Section 47 of the Code of Civil Procedure, if that section has any application. It is, however, obvious that Section 47 has application only where questions arise between the parties to the suit in which the decree was passed or their representatives, and relating to execution, discharge or satisfaction of the decree. In this case the pleader commissioner was not a party to the suit, and the questions raised are not questions in regard to execution, discharge or satisfaction of 'the decree'. In that view of the matter, in my opinion, Section 47 has no application. The answer given by Mr. Chaudhary is that Section 47 was the section mentioned under which the appellants had filed the objection. There is no doubt that Section 47 is mentioned as one of the sections under which the application was made; but merely because of that label, no legal significance can possibly be attached to that petition as a petition under Section 47. This is apparent also from the fact that the prayer made in the petition is not a prayer in regard to execution, discharge or satisfaction of the decree; the prayer made in the application is only to the extent that the amount of the commissioner's bill should be reduced or that it should not have been passed for the amount for which it was passed. In that view of the matter, no appeal lies.