SYED SAEED AHMED Vs. SYED RAZA HUSSAIN

JUDGEMENT

(1.) This is an appeal by defendant 4, arising out of an execution proceeding. A suit for partition was brought by the plaintiff against several defendants in respect of two houses originally. The appellant Said Ahmad was defendant 4. He pleaded that he was entitled to one house by virtue of his adverse possession. The plaintiff withdrew his claim as regards the other house, with liberty to bring a suit afresh. As regards the second house, it was claimed by Said Ahmad that the plaintiff instead of fighting the case against him, chose to exempt him from the suit. The Court ordered that defendant No. 4 be exempted from the suit, and he be given his costs. There was however no order that his name should be struck off the array of parties and should no longer appear in decree. His name continued to be on the record as one of the parties, and appeared in the decree which was subsequently passed, though it was noted that he had been exempted. In the execution department the plaintiff sought delivery of possession of the very house which defendant No. 4 had been claiming. The attempt was resisted by Said Ahmad, who pleaded that he was the owner of the property. The execution Court in a summary proceeding held that Said Ahmad had failed to prove his title, and also went on to hold that lie had been set up by the judgment-debtors. His objection was accordingly dismissed, and possession was ordered o be delivered to the decree-holder. Said Ahmad preferred an appeal to the District Judge, who dismissed the appeal on the ground that the proceedings were under Order 21, Rules 97 and 98 and that no appeal lay to him. The order of the District Judge has been upheld by a learned Judge of this Court.

(2.) The learned Judge of this Court has held that the proceedings fell under Order 21, Rules 97 and 98 and and also fell under Section 47, Civil P.C. He has rightly pointed out that the defendant 4 was a party to the suit for the purposes of the execution proceedings, but he cannot be considered to be a judgment-debtor. He has however held that Section 47 contains a general provision of the law, whereas Order 21, Rule 98 contains special provisions applicable to this, particular case. In his opinion, the special provisions must prevail over the general provisions. He ha? accordingly upheld the order of the lower appellate Court and dismissed the appeal. It is true that a defendant who has been exempted from the suit and against whom no decree is passed or an order capable of execution made, is not a judgment-debtor as defined in Section 2(10), Civil P.C. At the same time, it cannot be doubted that in view of the explanation added to Section 47, for the purposes of that section a defendant against whom a suit has been dismissed must be deemed to be a party to the suit. The order exempting him and at the same time allowing his name to remain in the decree was tantamount to a dismissal of the suit as against him. It follows that the defendant must be deemed to be a party for the purposes of the execution proceedings; he must therefore be deemed to be a party for all purposes under that section. Secs.2 and 47 have to be read together, and where there has been a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties in regard to any matter or controversy in the suit, the order amounts to a decree and all such orders which include the determination of any question under Section 47 are decrees. Section 47 is not necessarily confined to decree-Holders, on the one side, and judgment-debtors on the other and is wide enough to cover a dispute between co-defendants who may be parties in a partition suit. There is no doubt that the defendant was a party to the suit for the purposes of the execution department, and was entitled to put forward his title to the property which was sought to be seized by the decree-holder. Indeed, if lie were not to do so, his remedy by a separate suit would be barred.

(3.) The learned advocate for the respondents has urged before us that inasmuch as the case fell under Order 21, Rules 97 and 98, the only remedy open to the defendant was one by way of separate "suit under Rule 103, and the appeal was barred under that rule. Order 21, Rules 97 and 98, contemplate cases where the judgment-debtor or some one whom he has set up is resisting or causing obstruction to the delivery of possession to the decree-holder. The Court has to see prima facie whether there is any just cause for such resistance and obstruction, and has not to investigate the question of title thoroughly. In the present case it was not merely a matter of resisting possession or obstructing delivery, but the setting up of a title as against the decree-holder. Even if, therefore, it be conceded that the case in part fell under Rules 97, 98 and 103, the main dispute between the parties really came within the scope of Section 47, Civil P.C. There is, in our opinion, no inconsistency between the provisions of the rules in O 21 and the provisions of Section 47. But even if there were, it is obvious that Section 47 must override the provisions of the rules in the schedule, as is suggested by Section 128(1), Civil P.C. Where a case falls both under Section 47 and under some rule in Order 21, there will be no prohibition against a second appeal, because the prohibition under Section 104(1) is confined to orders only and not decrees. If the order comes under Section 47 also, the order would be a decree and an appeal would lie under Section 96 Civil P.C. and a second appeal under Section 100 to this Court.