SRT CHARUSILLA DASI Vs. SUKHDEV HALUAI

JUDGEMENT

(1.) THE facts material in this appeal are as follows: Plaintiff, here the appellant, obtained a decree for khas possession of certain lands in 1918. Miscellaneous litigations followed, with the result that a final application for execution of the decree against defendant 1 as the son and legal representative of the deceased judgment-debtor was made in 1927. Defendant opposed this application on the ground that by a compromise entered into after the passing of the original decree, the suit lands had been settled with him and others of his family. THE matter was heard and the Court decided that the decree was incapable of execution. THEre was no appeal against that order. In 1929, plaintiff brought the present suit to have the order set aside and to recover khas possession on the basis of her decree. She alleged that the order was founded on false evidence and asked that it should be set aside. THE Court of first instance held that the order deciding that the decree was incapable of execution was made not under Section 47, Civil P.C., but under C. 21, Rule 58 and was therefore no bar to the subsequent suit. THE learned Subordinate Judge held that it was made either under Section 47 or under Order 21, Rule 2, and he accordingly found that no suit lies to set it aside. In the result he dismissed the present suit. For the appellant, it is now contended that the order was not made either under Section 47 or under Order 21, Rule 2 and therefore the suit is not barred. Respondents contention is that the order was made under Section 47 and is a complete bar to a subsequent suit. I am definitely of opinion that the view taken by the learned Subordinate Judge was correct.

(2.) THE board rule is that all objections raised in execution proceedings by parties to the suit or their representatives come under Section 47 and that section bars a separates suit. Claims by third parties can be agitated by two ways, either under Order 21, Rule 58 or by means of a separate suit. In the present case, original objection was made by the defendant when he was brought on the record as heir and legal representative of the deceased judgment-debtor. It was therefore an objection by a party to the suit. It was argued that the section could not apply because, although he was the legal representative of the judgment-debtor, the defendant claimed the property in virtue of a new settlement with himself and not in his capacity of heir to the debtor. THE point however is without substance. It was held in Panchanon Bandopadhya V/s. Rabia Bibi (1890) 17 Cal 711 (F B), that an objection taken by a person who has become the representative of the judgment-debtor in the execution of a decree to the effect that property attached in execution thereof was his own property, and not held by him as such representative, is a matter cognizable only under Section 244 of the Code. This view was followed and affirmed in Naidabashi V/s. Rajendra Chandra (1928) 115 IC 353, in which case the correct principle was held to be that when the representative of the debtor, impleaded in the case, claims the property on his own behalf though under a different right Section 47 applies. It follows from this that in the present case, no separate suit lies to set aside the order passed in 1928 (1927)? to the effect that the decree was incapable of execution. In the result, the decision of the lower appellate Court is affirmed and this appeal dismissed with costs. Leave to appeal is refused.