SHANKAR DASS Vs. BHOLA NATH (CAPT )

JUDGEMENT

(1.) THIS civil second appeal has been referred to this bench by one of us as it raises a substantial question of law as to the interpretation of Section 47 of the Code of Civil Procedure, hereinafter referred to as the Code.

(2.) FOR a proper appreciation of the matter, it is necessary to give a resume of the facts leading to this appeal.

(3.) IN Civil suit No. 2 of 1962 instituted on October 1, 1962, by respondent No. 1 against the appellants, respondent No. 2 as also Mulla Singh and Qabla Singh sons of Dhirku Rajput of Kotli Mian Fateh, an ex parte decree for possession of land measuring 12 kanals comprised in survey no. 572/93 situate in Kotli Mian Fateh, Tehsil Ranbirsinghpora, was passed on May 29, 1964, by the Munsiff R. S. Pura in favour of the former. Alleging that possession of land comprised in survey no. 571/93 instead of that comprised in survey no. 572/93 situate in the said village was handed over to respondent No. 1 in execution of the aforesaid decree, the appellant filed an objection petition in the court of the Munsiff, Ranbirsinghpura, on July 2, 1965. This petition was consigned to records for default of the appellant on November 29, 1965 in the wake of Indo -Pak conflict. Instead of filling an application for restoration or an appeal against the aforesaid order of dismissal of their objection petition, the appellant filed on Feb. 2, 1966, a civil suit, being suit no. 3 of 1966, in the court of the Munsiff, Ranbirsinghpura, which was also the executing court so far as the aforesaid decree dated May 29, 1964, was concerned for possession of the land comprised in the said survey no. 571/93 as also for recovery of compensation amounting to Rs - 111/ - alleging that the land covered by survey no. 571/93 had been purchased by them vide sale deed dated June 23, 1958, from Omkar Singh respondent 2 herein, that mutation in regard to the transaction was also attested in their favour by the revenue authorities as it was accompanied by delivery of possession and that respondent no. 1 herein had without any right or title and in collusion with the Patwari taken possession of the land in May -June, 1965. This suit which was resisted by the respondent on various grounds was eventually dismissed on August 28, 1969, by the Munsiff R. S. Pura on the ground that an application under section 47 of the Code lay and a separate suit was barred. Against this judgment the appellants went up in appeal to the Sub Judge (Chief Judicial Magistrate), Jammu, but were unsuccessful. They have now come up in second appeal to this court.