Hanuman Baksh vs Deodatt and Others

S.D. Agarwala, J.—This is an execution second appeal. The relevant facts are that after the filing of the suit by the Respondents decree holder the property in dispute was attached before judgment on 7-12-1967. On 8-12-1967 the Appellant is alleged to have purchased the property which was attached before judgment. Subsequently a decree was passed in favour of the Respondents. When they sought execution of the decree by sale of the attached property the Appellant filed objection that the attachment effected on 7-12-1967 was wholly illegal as in fact no attachment was made on the spot. These objections were filed u/s 47 of the Code of the Civil Procedure. The objections were dismissed by the executing court on 5th July, 1969. Against the said dismissal an appeal was filed before the lower appellate court. The lower appellate court came to the conclusion that the objections of the Appellant were in the nature as required by Order 21 Rule 58 CPC and as such no appeal lies against the rejection of the objections and dismissed the appeal as not maintainable by its judgment dated 15th March, 1970. Against the said judgment the present appeal has been filed in this Court.

Learned Counsel for the Appellant has urged that the objections of the Appellant have to be treated as u/s 47 CPC and the appeal was accordingly maintainable and the view to the contrary taken by the lower appellate court is clearly erroneous in law.

Section 47, Sub-clause (1), CPC is as follows:

All questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

The argument of the Learned Counsel for the Appellant is that the Appellant is a ''representative'' within the meaning of Sub-clause (1) of Section 47 CPC and as such his objections are maintainable. In support of his submission he has cited a case of the Supreme Court reported in Jugalkishore v. Raw Cotton Co. AIR 1955 SC 376. In the case of Jugalkishore (supra) the subject matter of the suit had been transferred by the decree holder and in these circumstances the Supreme Court held while construing Order 22 Rule 10 CPC that the transferee should be regarded as a representative of the Plaintiff decree holder. The Supreme Court, therefore, further held that once the person is a representative of the decree holder he would be a representative within the meaning of Section 47 of the Code of Civil Procedure. The principle laid down in the case of Jugalkishore does not apply to the facts of the present case. In the instant case the subject matter of the decree has not been transferred by the decree holder in favour of the Appellant. The property which has been attached before judgment was transferred by the judgment debtor in favour of the Appellant. In the circumstances the Appellant cannot be held to be a representative of the judgment debtor in the decree. The objection of the Appellant clearly was to the effect that the attachment before judgment on 7th December 1967 was illegal and as such his sale was valid and the property was not liable to be sold in execution. These objections clearly lay under Order 21 Rule 58 CPC and could not have been filed u/s 47 CPC as the Appellant objector does not come within the expression ''representative'' used in Section 47 of the Code of Civil Procedure.

In the result I do not find any force in this appeal. It is accordingly dismissed but in the circumstances I direct the parties to bear their own costs.