PARBHU DAYAL Vs. ANANDI DIN

JUDGEMENT

(1.) THE facts of the case out of which this appeal arises are fully set forth in the judgment of the learned Judge of this Court. THE appeal, however, may be decided upon another ground, which is not the ground upon which the suit was decided by the Courts below and by the learned Judge of this Court. It appears that one Anandi Din executed a simple mortgage in favour of the present plaintiff Prabhu Dayal. A decree upon that simple mortgage was obtained against him and the respondent Ajudhia Parshad, who had purchased the equity of redemption from Anandi Din before the suit was brought. Anandi Din had executed a usufructuary mortgage in favour of Prabhu Dayal in respect of some other property in 1899. In execution of the decree upon the simple mortgage obtained by Prabhu Dayal. the mortgaged property was sold and as the proceeds of the sale proved insufficient to discharge the amount of the decree, Prabhu Dayal applied for and obtained a decree under Order XXXIV, Rule 6, of the Code of Civil Procedure. To the proceedings relating to that decree he had made Ajudhia Pershad a party, but the Court refused to make a personal decree against him and exempted him from the suit. Subsequently Prabhu Dayal attached the equity of redemption of Anandi Din in respect of the usufructuary mortgage to which we have referred and some other property. This equity of redemption was also included in the sale deed executed by Anandi Din in favour of Ajadhia Parshad. Ajudhia Parshad filed an objection stating that the equity of redemption could not be fold as he had purchased it. THE objection was allowed by the Court executing the decree and the prayer for the sale of the property was disallowed. Prabhu Dayal appealed from this order under Section 47 of the Code of Civil Procedure. THE Appellate Court held that no appeal lay and accordingly dismissed the appeal. Prabhu Diyal did not prefer a second appeal to this Court but he instituted the present suit on the 16th of January 1915. THE order of the Court allowing the objection of Ajudhia Parshad was dated the 12th of February 1913 and one of the questions which was raised in the suit in the Court below was, whether the suit was time barred. it was held that it was barred by the law of limitation. In the view which we take of the case, we do not deem it necessary to consider the question of limitation. THE proceedings for a decree under Order XXXIV, Rule 6, were proceedings in the suit brought by Prabhu Dayal to enforce the simple mortgage executed by Anandi Din. As stated above, the suit at that stage was dismissed against Ajudhia Parshad and he was exempted. Under the Explanation to Section 47 of the Code of Civil Procedure a defendant against whom a suit has been dismissed is for the purposes of that section a party to the suit, and any question relating to execution, satisfaction or discharge of the decree as between him and the decree holder is a question between the parties to the suit. Although Ajudhia Parshad had been a party to the suit and had been exempted from the personal decree passed in the suit, he still continued to be a party to the suit within the meaning of Section 47 and his objection to the sale of the property, which the decree holder Prabhu Dayal sought to sell, was an objection relating to the execution, satisfaction or discharge of the decree. It is true that under the old Code of Civil Procedure it had been held by this Court that a defendant against whom the suit had been dismissed had ceased to be a party to the suit and that a question relating to execution as between the decree-holder and him was not a question between the parties to the suit. THEre was a conflict of opinion on the point between the different High Courts and it is manifest that in order to put an end to this conflict the Explanation to Section 47 was inserted in the present Code of Civil Procedure. In view of the provisions of the section as it stands, Ajudhia Parshad was a party to the suit for the purposes of Section 47 and the questions which arose between him and the decree-holder Prabhu Diyal were questions relating to the execution, discharge or satisfaction of the decree. Those questions could only be determined by the Court executing the decree and not by separate suit. Ajudhia Parshad rightly preferred his objections under the section and those objections having been allowed, the decree holder s remedy was to appeal. Ha did appeal but unfortunately the Appellate Court took an erroneous view of the law. that, however, could not make any difference. He ought. to have appealed to this Court and obtained a decision from this Court on the point. He did not do so but he instituted a suit which is forbidden by the provisions of Section 47. THE learned Counsel for the appellant has asked us to treat the present suit as an application for execution and has invoked in and the provisions of Sub-Section 2 of the section. THE answer to this contention is that the matter having been already decided by the Court executing the decree and the decision of that Court having now become final and binding upon the parties, the same question canto be raised in execution. In this view the suit was bound to fail and was rightly dismissed. We dismiss the appeal with cost.