DWARKADAS MARWARI Vs. JADAB CHANDRA GANGULY

JUDGEMENT

(1.) I have had the advantage of reading the judgment which my learned brother is about to deliver, and I agree in the substance of the order that he proposes to make. If there is a right of appeal to this Court, that is, if the learned Judge was right in thinking that an appeal lay to him, I agree that his decision on the merits was wrong and should be reversed.

(2.) Personally, however, I do not think that an appeal lay and consequently I hold that we should interfere under the provisions of Section 115, Civil Procedure Code. My reasons for thinking that no appeal lay are as follows: The view that the matter comes within the scope of Section 47, Civil Procedure Code, rests on the footing that the question has arisen between the parties to the suit brought by Sitaram. It must be that suit, because Jadab was not a party to the other. The parties to that suit are Sitaram on the one side and Jadab and Anil on the other side, and the order for rateable distribution can be treated as an order falling within the scope of Section 47 of the Code only, if it raised a question between the parties to that suit relating to the execution, discharge or satisfaction of the decree. We have to see whether there was such a question. On behalf of Jadab it is argued that there was such a question, on the ground that, but for the order of rateable distribution, Rs. 2,932-15 would have been credited towards the satisfaction of Sitaram's decree, instead of Rs. 2,631-15. It is urged that in respect of the sum of Rs. 301 there is a question between Jadab and Sitaram relating to the discharge of Sitaram's decree. I agree that there is a question relating to the discharge of the decree, but I cannot regard it as one between Jadab and Sitaram. The question is not whether Sitaram should relax his hold on any portion of the sale-proceeds, but whether Dwarka should be allowed by order of the Court to lay hands on that portion. If, however, it be conceded that the question has arisen between Sitaram and Jadab, it is obvious that it cannot be decided in the absence of Dwarka and Ram Kumar. That means that an outsider to the suit must be brought in to the proceedings, and this addition destroys the element of identity which appears to be a necessary ingredient in proceedings under Section 47 of the Civil Procedure Code.

(3.) As, however, I think that the Judge's order should be reversed, I see no reason to differ from the order proposed by my learned brother, and the appeal will be disposed of in accordance with his judgment. Mukerji, J.