KHEM SINGH Vs. RAGHUBIR SINGH

JUDGEMENT

(1.) This appeal arises out of execution proceeding under the following circumstances. One Khushal Singh obtained a mortgage from one Chattar Singh and on foot of it sued his widow Mt. Jai Debi. Khushal Singh obtained a decree and put it in execution. Just before the property was sold Mt. Jai Debi died. Before the sale, Khushal Singh also died and the names of his four sons Raghubir Singh, Sher Singh, Rajindar Singh and Karan Singh were substituted in his place as the decree-holders. These decree-holders made an applicationto the Court stating that on the death of Mt. Jai Debi they themselves had succeeded to the property of the judgment-debtor, viz., the property that had been sold, and that it was not necessary to proceed with the execution any further. The execution proceedings were being carried on before the Collector, the property being ancestral. Before the Collector there appeared two other sets of claimants. One Yograj Jang Bahadur claimed that he was the next reversioner to the estate of Chattar Singh. The appellants before this Court appeared before the Collector and stated that they were the reversioners of Chattar Singh and they ought to be brought on the record The Collector decided that he could not go on with the proceedings without the Civil Court adjudicating as to the title of the several persons to represent the judgment-debtor's estate. Accordingly by order, clawed the 26 of March, 1919, he returned the papers to the Civil Court for determination of the question.

(2.) While the several cases were pending Yograj Jang Bahadur instituted a suit of his own to obtain a declaration of his title. That suit failed and Yograj Jang Bahadur's appeal to this Court also failed. Thereupon the contest remained between the remaining two parties, viz., the present appellants and the respondents. The respondents admitted that there were five other persons similarly descended as they themselves and that these five persons would be equally entitled to Chattar Singh's property with the decree-holders. Thus there was a contest between the appellants on one side and the respondents and five others on the other. The learned Subordinate Judge decided against the appellants and hence the present appeal.

(3.) A preliminary objection was taken be the learned Counsel for the respondents to the effect that no appeal lay. We are of opinion that an appeal lies under Section 47 of the Civil P. C.. The argument of the learned Counsel for the respondents was substantially this. If the question of title has been decided under Order 22, Rule 5 of the Civil P. C. there is no appeal. Again if the question was decided under Section 50 of the Civil P. C. there is again no appeal. As regards the application of Section 47 of the Code of Civil Procedure the learned Counsel argued that it was really the business of the decree-holder to bring such people as he thinks fit on the record, and if the decree-holder is not inclined to bring anybody on the record or if he is going to stop the execution altogether it was no business of anybody to jump into the case.