SAMHUT RAI Vs. SAMBARAN RAI

JUDGEMENT

(1.) This is an appeal from an order passed in the course of a proceeding for execution of a personal decree made under Order 34, Order 6, Civil P.C. The respondent had obtained a mortgage decree in the original mortgage suit in which the appellant was imp leaded as the purchaser of a portion of the mortgaged properties, and he was also a party to the mortgage decree. The mortgaged properties were sold and the sale proceeds being insufficient to satisfy the decree, the respondent obtained a personal decree. It appears that the appellant was a party to the personal decree, but it is conceded before us that his name was entered therein by mistake, and that on no account a personal decree could be passed against him as he was merely a subsequent transferee.

(2.) In fact the decree has since been amended. In execution of the personal decree, the respondent attached certain properties. The appellant filed a petition of objection under Section 47, Civil P.C. alleging that he had in execution of a money decree purchased the properties attached and sought to be sold. His case was that he made this purchase at the very execution sale by which he had purchased a portion of the mortgaged property by reason of which he had been imp leaded as a defendant in the mortgage suit. Although the petition of objection filed by the appellant clearly purported to be one under Section 47, the learned Munsif seems to have proceeded on the footing that it was really a claim under Order 21, Rule 58 of the Code. On that footing he discussed the question of possession only, and having come to the finding that the appellant failed to prove his possession, he dismissed the objection.

(3.) On appeal, the learned District Judge took the same view. He also proceeded on the assumption that the objection was really a claim under Order 21, Rule 58, and he, having accepted the learned Munsifs finding that the appellant failed to prove his possession, dismissed the appeal. Hence this second appeal. The first, question raised before us is whether the appeal is competent. If the objection filed by the appellant was really a claim under Order 21, Rule 58, it is conceded that no appeal lies. But it is argued by Mr. D.N. Varma for the appellant that the objection really came under Section 47. Here it is necessary to quote the relevant portion of Section 47: (1) 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 satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.