GANPATRAO SULTANBAO MAHURKAR Vs. ANANDRAO JAGDEORAO MAHURKAR

JUDGEMENT

(1.) This is an appeal from the order of the First Class Subordinate Judge of Ahmednagar on the application of the present appellant for a refund of Rs. 1,088-5-6 said to have been wrongfully recovered by the present respondent in execution proceedings in Darkhast No. 1224 of 1906. The decree under execution was passed by the Subordinate Judge of Jhanai and transferred for execution to the Court of the First Class Subordinate Judge at Ahmednagar. The sum is said to have been improperly recovered by the respondent bout the 29th of November 1910. A suit was filed la the Court of the Second Class Subordinate Judge of Shevgaon on the, 14th of November 1918 to recover this amount, But that suit was dismissed on the 31st of March 1915 on the ground that no suit could lie and that the proper remedy was by way of an application under Section 47 of the Code of Civil Procedure. The present application was made to the Court at Ahmednagar on the 19th of May 1915. That Court has dismissed it on the ground that such an application in execution cannot lie and that it is time- barred.

(2.) The correctness of this view is questioned before us on behalf of the appellant; and on behalf of the respondent it has been further argued in support of the order made by the lower Court that that Court had no jurisdiction to entertain the application after the execution of the decree was over and that if at all the application should have been made to the Court at Jhansi, which passed the decree.

(3.) The first question is whether this application for a refund of the sum can be entertained by the executing Court. According to the terms of Section 47 of the Code of Civil Procedure, all questions arising between the parties to the suit and relating to the execution, discharge or satisfaction of the decree must be determined by the Court executing the decree and not by a separate suit. This application raises in my opinion a question relating to the execution of the decree and is clearly one, which could be and ought to be entertained by the Court executing the decree, and in respect of which no separate suit can lie. This view is supported by the decision in Partab Singh v. Beni Ram (1878) I. L. R. 2 All. 61, which was a decision under Section 244 of the Code of 1877 corresponding to Section 47 of the present Code. The application therefore was properly made to the executing Court. Further, it is difficult to understand how the present respondent can be heard to urge this plea, after having successfully contended in the suit filed in the Court at Shevgaon that the proper remedy was to file an application under Section 47 of the Code for the refund and not to file a suit.