M. Govindaswami Pillai vs R. Venkatarathna Mudaliar and Others

Venkataraman, J.—In order to appreciate the points in controversy in this second appeal which arises out of a suit Original Suit No. 238 of 1959, on the file of the District Munsif of Erode, filed by the Appellant, the following facts have to be stated. In Original Suit No. 1455 of 1927, on the file of the District Munsif of Erode, one Ramaswami Naicker obtained a decree for dissolution of partnership against some persons and ultimately certain specific amounts were made payable to him by the Defendants severally. Thus Manickam Pillai, son of Kasthuri Pillai, was ordered to pay a certain amount and Govindaswami Pillai and his mother were ordered to pay a certain amount as legal representatives of Muthuveera Pillai (father of Govindaswami Pillai). One Venkataratna Mudaliar attached the decree and sought to execute it. He filed Execution Petition No. 401 of 1951, to execute the decree so far as Manickam Pillai was concerned. In that execution petition, a certain property was put up for sale as belonging to the said Manickam Pillai and it was purchased by E. P. Chinnappan. Chinnappan filed Execution Petition No. 1776 of 1956, for delivery of possession of the property. He claimed to have obtained delivery on 11th July 1957 (exhibit B-10). On 23rd July 1957, Govindaswami Pillai filed an application Execution Application No. 1147 of 1957, in Execution Petition No. 401 of 1951 contending that the execution proceedings and sale were void on the ground of limitation and that further the property put up for sale as that of the judgment-debtor Manickam Pillai do not really belong to him but belonged only to Govindaswami Pillai. His case was that his father Muthuveera Pillai had purchased the property on 15th April 1913> under exhibit A-12 and built a house thereon, that Muthuveera Pillai and after him Govindaswami Pillai had been in exclusive possession thereof and that Manickam Pillai had no right at all in the property. He, therefore, prayed that the warrant of possession might be recalled, that an order recording delivery of possession should not be passed and that the application for delivery of possession should be dismissed. He quoted Sections 47, 151 and Order XXI, Rule 100, Code of Civil Procedure, in support of the application. In paragraph 9 ho stated

As this matter is one relating to question of execution and satisfaction of the decree and is a matter arising between the parties to the suit or their representatives an application is made u/s 47 of the Code of Civil Procedure.

This petition was dismissed on 25th March 1959, (exhibits A-1 and A-2), the executing Court holding ''that the property put up for sale belonged to Manickam Pillai, that it had been purchased on 27th March 1911 (under the original of exhibit B-1) by Manickam Pillai''s father Kasthuri Pillai and had been in the possession of Kasthuri Pillai and after his death Manickam Pillai.

The suit, Original Suit No. 238 of 1959, was thereupon instituted by Govindaswami Pillai to set aside the order of dismissal of Execution Application No. 1147 of 1957, to declare that the house belongs absolutely to the Plaintiff and to restrain Chinnappan from taking possession of the house. In this suit he impleaded Venkatarathna Mudaliar, the executing decree-holder, as the first Defendant, Manickam Pillai, the judgment-debtor, as the second Defendant, and E.P. Chinnappan the auction purchaser, as the third Defendant. The suit was contested mainly by the third Defendant on the grounds firstly, that the property which was sold in Court auction and purchased by him really-belonged to Manickam Pillai, and secondly, that the suit was barred by the provisions of the Code of Civil Procedure, the contention being that Application No. 1147 of 1957 was one u/s 47 of the Code of Civil Procedure, that the order therein was appealable as a decree and the proper remedy of the Plaintiff was only an appeal therefrom and not a separate suit. The learned District Munsif who tried the suit upheld both the defences and dismissed the suit. The learned District Judge who heard the appeal preferred by the Plaintiff agreed with the learned District Munsif on both the points and dismissed the appeal. Hence this second appeal.

I am afraid that the objection that the suit is not maintainable and that the proper remedy of the Appellant was to have filed an appeal against the order exhibit A-1, dated 25th March 1959, is formidable. Apart from the fact that the Appellant himself stated in his application Execution Application No. 1147 of 1957, that it was one u/s 47, that is really so. Section 47, so far as it is material, says:

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 explanation to the section is:

For the purposes of this section, a Plaintiff whose suit has been dismissed, a Defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit.

It may be mentioned that his explanation is the result of an amendment effected by Section 5 of Act LXVI of 1966. Prior to that, the explanation read thus:

For the purposes of this section, a Plaintiff whose suit has been dismissed and a Defendant against whom a suit has been dismissed, are parties to the suit.

As a result of the amendment, a purchaser at a sale in execution of the decree is a party to the suit, even if he is a stranger like the third Defendant Chinnappan and not the decree-holder. It may be noted that this amendment came into force on 3rd December 1956, and the application, Execution Application No. 1147 of 1957 was made only thereafter and would be governed by the amendment. This amendment enables us to dispense with the necessity of considering the position under the old explanation. There was then some conflict of decisions between the High Court as to whether a question between stranger auction-purchaser and a judgment-debtor would fall u/s 47. There is a full discussion in the recognised text books in particular in Mulla''s CPC Section 47 under note 13 under the heading Execution Purchaser Question between the auction-purchaser on the one hand and a party to the suit or his representative on the other hand pages 236 to 241 of the latest thirteenth edition. But, after the amendment, there can be no doubt that an auction-purchaser is a party and so long as the question is between him and another party to the suit and relates to execution, discharge or satisfaction of the decree, it is a matter which falls u/s 47, and if it does, it has the force of a decree u/s 2 (2) and should have been appealed from. Sri T. L. Venkatarama Aiyar, the learned author of the latest edition of Mulla''s Code of Civil Procedure, after reviewing the state of the law before the amendment, says:

The above discussion has reference to the law as it stood prior to the amendment of the Explanation in 1956. That amendment enacts that for the purpose of the section a purchaser at a sale in execution of the decree is a party to the suit. The result of the amendment is to set at rest the controversies as to whether the auction-purchaser is a representative of either party and if so of which of them. He must now be regarded as a party. It is of course still necessary to bring his dispute under the section that it should relate to execution, discharge or satisfaction of the decree.

The commentary in AIR 1963 edition note 19 is also to the same effect. There can be little doubt either that the question whether the property belongs to the judgment-debtor Manickam Pillai and the auction-purchaser is entitled to delivery thereof is one relating to the execution and satisfaction of the decree so far as the auction-purchaser is concerned. Even before the amendment, the accepted view of the Madras High Court was that so far as the decree-holder purchaser was concerned an application for delivery of the property purchased would fall u/s 47 Code of Civil Procedure. See Krishna v. Subramania ILR (1939) Mad. 456 quoted in Annamalai v. Ramasami ILR (194) Mad. 436 in the order of reference and the judgment of Patanjali Sastri J. This was on the ground that the decree-holder could not be said to have obtained the full fruits of the decree without getting possession of the property purchased by him. In Annamalai v. Ramasami ILR (194) Mad. 438 a Full Bench of five Judges of this Court held that this principle would not however apply in the case of a stranger auction-purchaser and that his application for delivery would not fall u/s 47, CPC because the decree-holder had been paid his money and had disappeared from the proceeding and the question of delivery to the stranger auction-purchaser could not be said to relate to the execution, discharge or satisfaction of the decree. It is also pointed out by four of the Judges that the auction-purchaser was only a representative of the judgment-debtor and the question of delivery would only be a question between a judgment-debtor and his own representative and would not fall u/s 47. It is precisely to remove such controversies that the amendment has been effected declaring even the stranger auction-purchaser as a party. The thing he is most interested in is to secure possession of the property purchased by him even in the case of execution of a simple money decree and without it ho cannot get the full fruits of his purchase. So far as he is a party, it can be said that the question of delivery is a question of execution or satisfaction of the decree just as it was held in the case of the decree-holder purchaser that his application for delivery would be a question relating to the satisfaction of the decree. If the amendment does not effect this result, it would not really serve any useful purpose. Further, if we are to hold that the application of a stranger auction-purchaser in execution of a simple money decree for delivery does not relate to the execution discharge or satisfaction of the decree even after the amendment, it will mean that these words must be limited to a question between the decree-holder and the judgment-debtor. But on such an interpretation the amendment would have been unnecessary, because even before the amendment, if the question related to the execution, discharge or satisfaction of the decree, it would usually be a question between the decree-holder and the judgment-debtor, and that would be sufficient to attract Section 47 irrespective of the fact of the auction-purchaser being interested in the result. See the following oft-quoted observations in the Privy Council case of Prosunno Kumar Sanyal v. Kali Das Sanyal ILR (1892) Cal. 683 where their Lordships say:

...when a question has arisen as to the execution, discharge, or satisfaction of a decree between the parties to the suit in which the decree was passed, the fact that the purchaser, who is no party to the suit, is interested in the result has never been held a bar to the application of the section.

Thus it seems to me that after the amendment, the application of the stranger auction-purchaser in execution of a simple money decree for delivery of possession of the property purchased by him will raise a question relating to the execution and satisfaction of the decree so far as he is concerned and will, therefore, fall u/s 47. Equally when the question was raised by Govindaswami Pillai against the auction-purchaser, the question would fall u/s 47, Code of Civil Procedure.

Sri S. Rajagopalan, learned Counsel for the Appellant, however, tries to get over the above result by urging that by virture of a certain circumstance Govindaswami Pillai and his mother must be deemed to be no longer parties to the suit. He relies on the fact that the previous execution petition. Execution Petition, No. 1876 of 1953, filed in the same suit. Original Suit No. 1455 of 1927, against Govindaswami Pillai and his mother to recover the sum of money separately decreed against them, was in appeal dismissed by the learned District Judge on 21st January 1955, as barred by time. The order of Sri Anthony Lobo, the District Judge, proceeded on the footing that since a separate relief had been granted against Govindaswami Pillai and his mother, the prior execution petitions filed against the other judgment-debtors in respect of the reliefs granted against them could not be relied on by the decree-holder under Explanation 1 to Article 182 of the Limitation Act of 1908 to extend the time. The actual order is:

The petition is clearly barred by limitation. The order of the Court below is therefore set aside and this appeal is allowed with costs.

(Vide page 10 of the typed papers.)

Sri S. Rajagopalan contends that the above order amounts to an exoneration of Govindaswami Pillai and his mother in the stage of execution proceedings and that by virtue of that order, dated 21st January 1955, no further relief could be claimed under the decree against Govindaswami Pillai and his mother in execution. In support of this contention, he relies on some observations of Mack J., in Mahalakshmamma v. Hanumayya (1963)1 M.L.J. 808. That was a case where a suit was instituted on a promissory note executed by one deceased Ramakotayya to recover the money from Ramakotayya''s widow the first Defendant and his daughter-in-law Mahalakshmamma, the second Defendant. Mahalakshmamma was exonerated in the suit with costs by the learned District Munsif and the Plaintiff obtained a decree against the assets of Ramakotayya in the hands of his widow. In execution he attached some immovable property and Mahalakshmamma laid claim thereto in a petition under Order XXI, Rule 58 and Sections 47 and 151. The learned District Munsif held that she had prima facie title and possession and allowed the claim petition. He seems to have observed that the decree-holder''s further remedy was to set aside the summary order by a separate suit under Order XXI, Rule 63. The decree-holder preferred an appeal to the learned Subordinate Judge, who took the view that Mahalakshmamma was a party to the suit and, therefore, the question was one which had to be decided u/s 47 properly on its merits and not in a summary manner and that the further remedy of the decree-holder was not a suit under Order XXI, Rule 63, but a regular appeal. He, therefore, remanded the petition for further enquiry. Against that Mahalakshmamma preferred the appeal which was heard by Mack J. The learned Judge referred inter alia to the decision of the Full Bench in Abdul Sac v. Sundara Mudaliar ILR (1930) Mad. 81 and upheld the view of the learned District Munsif.

In Abdul Sac v. Sundara Mudaliar ILR (1930) Mad. 81 the question arose in the following way. A mortgage suit Original Suit No. 348 of 1917, was filed. The first Defendant was the mortgagor''s legal representative. The second Defendant with whom the other Defendants 3 to 6 sailed claimed a paramount title to the hypotheca independently of the mortgagor. The District Munsif who tried the suit dismissed the suit against Defendants 2 to 6 and gave a decree only against the first Defendant. In the judgment he had observed:

Second Defendant claims an independent title. He has endorsed on the plaint that he does not derive his title from the mortgagor but quite independently of him. Therefore he is not a necessary party to the suit. The suit must be therefore dismissed with costs against Defendants 2 to 6. Plaintiffs will get a decree against the other Defendants in the suit.

An execution petition was filed bringing the properties to sale without notice to Defendants 2 to 6. Defendant 6 was dispossessed. Then the 2nd Defendant filed an application to put him back in possession of the property. The learned District Munsif allowed the application observing:

The Plaintiff is not entitled in execution of this decree to evict the sixth Defendant or Defendants 2 to 5.

The decree-holder appealed to the District Judge who held that a question of title arose which had to be decided u/s 47 because Defendants 2 to 6 were, in his opinion, parties to the suit, and that the matter had to be further investigated. Against that the appeal to the High Court was preferred which came up before the Full Bench in view of the conflict of authorities. The learned Judges referred to the explanation in Section 47 which says that the Defendant against whom a suit has been dismissed is a party to the suit and posed the question whether in that case Defendants 2 to 6 were parties within the meaning of the explanation. They held that they were not because the decree of the District Munsif dismissing the suit against them was on the footing that they were not proper parties at all to the suit and should not have been impleaded. The learned Chief Justice observed that the District Munsif should have struck off their names from the record under Order I Rule 10 (2) and that the failure of the District Munsif to adopt the correct procedure should not place Defendants 2 to 6 in a worse position than if the correct procedure had been adopted. He observed (at page 91):

It seems to me to be a contradiction to say that a person who is held at the trial of the suit not to be a proper party to the suit remains still a party to the suit.

It was recognised that except in such cases a Defendant against whom a suit has been dismissed would still remain a party to the suit.

In Chittirala Mahalakshmamma Vs. Senisetti Hanumayya and Another, , Mack J., followed the above Pull Bench decision and held that the name of Mahalakshmamma must be deemed to have been struck off from the record as an unnecessary party. Hence her claim petition was not governed by Section 47, but by Order XXI, Rule 58. Mack J., then went on to make the following observations which are relied on by Sri S. Rajagopalan:

There is a further aspect of Section 47 which requires two conditions to he satisfied, in order to bring applications in execution within its scope. The first condition is that it must be a question arising between the parties to the suit in which the decree was passed. The second condition is that it must relate to the execution, discharge or satisfaction of the decree. The word "and" in this connection in Section 47 (1) appears to me to be highly significant. In the present case, the question raised as between the Plaintiff decree-holder and the present Appellant could not have been adjudicated upon in the suit on the pronote. I entirely fail to see how an issue as between the parties which could not in any event have been decided in the suit itself and does not arise between the parties can be decided in execution proceedings by way of an application u/s 47, Code of Civil Procedure. This is an aspect of Section 47, Code of Civil Procedure, which has not been specifically adverted to in the decisions to which I have been referred. It would be opening an avenue of abuse if a Plaintiff were to include as Defendants in a suit, quite improperly, persons who are really unnecessary and while not being able to have any issues decided as between him and them in the suit itself, be permitted to pursue remedies against them in execution u/s 47, CPC and have them determined without the payment of any Court fee.

Now these observations do not lend support to the contention of Sri S. Rajagopalan. In the first place, the order of Sri Antoni Lobo, dated 21st January 1955, does not say that the names of Govindaswami Pillai and his mother were struck off from the record. Secondly, it does not seem to be open to an executing Court to strike off the names of parties if they otherwise appear in the cause title of the decree even in a case where the decree shows that the suit in respect of those Defendants was dismissed, though as pointed out in Abdul Sac v. Sundara Mudaliar ILR (1930) Mad. 81 it would be open to the executing Court to construe whether the dismissal of the suit against them would amount to a removal of their names from the suit. In this particular case, it will be seen that in Original Suit No. 1455 of 1927, there was a decree separately against Govindaswami Pillai and his mother. The mere fact that no further execution petition would lie against them cannot in law make them cease to be parties in the suit for the purpose of Section 47. There are, in fact, a number of decisions, which I shall refer to presently, to show that the relevant criterion u/s 47, CPC is whether the person was a party to the suit as a Defendant, bearing in mind the distinction made in Abdul Sac v. Sundara Mudaliar ILR (1930) Mad. 81 and so long as he is a party to the suit it does not matter if he is not a party to the execution proceeding wherein he puts forth his objection. If the observations of Mack J., imply anything to the contrary, I must with respect, dissent from the learned Judge. In other words, in a case where a suit has been dismissed against a Defendant but he would be a party within the meaning of the explanation of Section 47 even after applying the criterion laid down in Abdul Sac v. Sundara Mudaliar ILR (1930) Mad. 81 an objection raised by him in execution proceedings that a certain property sought to be proceeded against in execution belongs to him would fall u/s 47, even though the title to the property could not have been the subject matter of adjudication in the suit. This is clearly implicit in the discussion in the Full Bench case because, otherwise, the learned Judge need not have been at pains to consider the scope of the dismissal of the mortgage suit against Defendants 2 to 6 as to whether it amounted to a removal of their names under Order I, Rule 10, Code of Civil Procedure. That implies that, if such a view could not be taken, Defendants 2 to 6 would be parties to the suit in spite of the dismissal of the suit against them, and the case would have fallen u/s 47.

In Sheikh Abdul Rahim Vs. Gujeshar Mahto and Others and Jadu Thakur and Others, a Bench of the Patna High Court observed:

The learned vakil for the Appellant has obviously overlooked the provisions of Section 47, which do not require that a person making an application under that section should be a party to the execution proceedings. All that the section requires is that he must be a party to the suit in which the decree was passed ". The Plaintiff Respondent was impleaded as Defendant along with Defendant 4th party in the rent suit in which the joint decree in question was passed.

What had happened was that though a decree had been passed against the Plaintiff and the fourth Defendant in the rent suit, the decree-holder had wrongly brought the property to sale without impleading the Plaintiff, and it was bought by a stranger and the Plaintiff filed a suit to set aside the sale, which was treated as an application u/s 47. That was objected to by the auction purchaser, the Appellant before the High Court.

In Chunilal Asharam Vs. Kashibhai Nathabhai, a suit was brought against father and son. It was dismissed against the father but decreed against the son. The decree-holder made an application to attach some property as that of the son. The father intervened, claiming the property as his. It was held that his objection would fall u/s 47 because, though the suit had been dismissed against him, he was still a party within the meaning of the Explanation to Section 47. But actually the learned Judges pointed out that his application was premature because no attachment had yet taken place.

In Valluvanatkara Vallabha Valia Raja Avergal Vs. Valluvanatkara Manakata Kovilakath Vedaturath and Others, Devadoss J., observed:

Though a person who was once a party might be exonerated in the course of the suit and though no decree is passed against him and no relief is given against him, yet if any question by virtue of the execution of that decree between the parties arises, such question must be determined according to the provisions of Section 47, that is to say, in execution;....

The learned Judge purported to follow a recent case decided by the Patna High Court. He does not mention the name of the case, but it appears to be the case in Sheikh Abdul Rahim Vs. Gujeshar Mahto and Others and Jadu Thakur and Others,

The same view was reiterated by the Patna High Court in Shaikh Kaloo Vs. Bholanath and Others, . The Appellant who brought the latter suit had been impleaded in a previous suit which was dismissed against him; but in view of the Explanation to Section 47, it was held that he was still a party. After referring to decisions prior to the introduction of the explanation where it had been held that Section 244 of the Code of 1882, corresponding to Section 47 did not apply between a decree-holder and a person against whom, though a party to a suit, no decree had been passed, it was observed:

The general principle upon which this decision and others of a similar kind were based was that it was not fair that a person against whom no decree had been made and who was really in the position of a stranger, should be compelled to have resort to the summary procedure of the Execution Court in order to establish his title. That principle, however, has not been accepted in Section 47 of the present CPC of 1908, which has expressly enacted that the parties to the suit include the parties against whom the suit has been dismissed. Therefore, upon the plain wording of the statute there can be no room for argument as to whether the Appellant was entitled u/s 47 of the Code, to apply to the Execution Court for the determination of his claim: and as the decision of Execution Court was a final decision on a question of right, it was a decree and an appeal lay against it to the District Judge.

There is then a decision of the Privy Council in Julien Marret v. Mohamed Khaleel Sirazi and Sons (1929) 58 M.L.J. 275 There one ''S'' brought a suit against a Company and one Marret as agent of that Company. The South Indian Export Company stood surety for payment of money by Marret. The suit was actually decreed only against the Company, but dismissed against Marret. The surety deposited the money and the money was wrongly taken away by ''S''. Marret filed the suit to recover the money. Their Lordships of the Privy Council held that the suit was barred by Section 47. They observed (at page 283):

...by Section 47 of the Code of Civil Procedure, all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution and satisfaction of the decree shall be decided by the Court executing the decree. It is plain to their Lordships that the question in this case arises between the parties to the suit and relates to the satisfaction of the decree. So far as the order for payment out is concerned it is expressed to be in satisfaction of the decree, it has no other meaning, and that in itself precludes any cause of action by the present Plaintiff in the present suit.

It is really unnecessary to cite any further authorities after this pronouncement by the Privy Council. However, I might just refer to three other cases.

In Musammat Madho Bibi v. Hazari Mal Marwari ILR (1929) Pat. 717 Fazl Ali J., as he then was, considered the question whether a revision petition lay u/s 115, CPC against the dismissal of a claim petition filed by the Petitioner under Order XXI, Rule 58, CPC before a Subordinate Judge. In the suit which resulted in the execution proceedings, the Petitioner had been a Defendant; but the suit was dismissed against her on the ground that she had not been benefited by the loans.

Fazl Ali J., had no difficulty in holding that by virtue of the explanation to Section 47 she still remained a party. The order of the learned Subordinate Judge rejecting her claim petition falling u/s 47 was appelable to the High Court and, therefore, the revision petition did not lie. The learned Judge points out the distinction, between a case which falls u/s 47 and one under Order XXI, Rule 58 in an application filed by a person not a party to the suit. In the latter case, the remedy is only by a further suit under Order XXI, Rule 63.

In Chengalraya Reddy and Others Vs. Kollapuri Reddi, Anantakrishna Ayyar J., held that a suit (Original Suit No. 932 of 1921) was barred by Section 47 on account of a prior suit Original Suit No. 755 of 1910. The prior suit was a mortgage suit against one Muruga Pillai and Adiyapada Pillai but the decree exonerated the latter''s share. However, in execution, the mortgagee sold his share also and obtained symbolical delivery. Adiyapada Pillai had sold that property to Kollapuri Reddi and the latter brought the suit Original Suit No. 932 of 1921 against the mortgagee-decree-holder to remove the obstruction caused by him. The learned Judge held that it was a question of excessive execution and should be decided u/s 47. He further held that there was no objection in that case to treat the suit as an application u/s 47.

Shiv Ram v. Kehar Singh AIR 1934 Lah. 195 was a case where a co-sharer was impleaded merely as a pro forma Defendant and there was no decree against him. But yet it was held that an objection by him that there was excess execution should be agitated only by an application u/s 47 and not by a suit.

I must pause at this stage and observe that the situation arising out of the amendment to Section 47 making the auction purchaser a party was not discussed at the original hearing of the appeal, and similarily the decisions which are extracted above to show that he criterion to attract Section 47 is only whether the objector was a party to the suit and that the execution proceeding itself need not be directed against him were not referred to at all at the original hearing and were mostly traced by me. Consequently, I thought it fit to post the appeal for further arguments on these aspects. At the further hearing, Sri Gopalaswami Iyengar for the Respondents supported the views expressed by me above and referred to the commentary in Mulla''s CPC Note 5 Question relating to execution, discharge or satisfaction (1) Property wrongly taken in execution at page 221 of the latest edition and the decisions of the Supreme Court in Merla Ramanna Vs. Nallaparaju and Others, and B.V. Patankar and Others Vs. C.G. Sastry, where their Lordships have approved and followed the decision of the Privy Council in Julien Marret v. Mahomed Khaleel Shirazi and Sons (1629) 58 M.L.J. 275 (P.C.) He also cited the decisions in Shiva Sankar v. Ajit Kumar (1963) 67 C.W.N. 916, Malathy Amma v. Jos ILR (1963) 2 Ker. 255, Kailasa Reddiar v. Ponuammal (1961) 2 M.L.J. 119 and Alagasundaram Pillai v. Pichuvier ILR (1929) Mad. 899. It is, however, unnecessary to discuss those authorities in detail.

Sri S. Rajagopalan for his part, while stating that he could not furnish an effective answer to my reasoning and the decisions quoted by me, attempted to put the matter in another way by saying that the application, Execution Application No. 1147 of 1957, of Govindaswaini Pillai was one solely under Order XXI, Rule 100 and that having failed therein, his only remedy was the suit which he has filed under Order XXI, Rule 103. Order XXI, Rule 100 (1) says:

Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

The Court is directed to enquire and pass an order. Order XXI, Rule 103 says:

Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive.

The argument is that Govindaswami Pillai is a person other than the judgment-debtor so far as the execution petition, Execution Petition No. 401 of 1951, in which the sale took place was concerned. The definition of judgment-debtor in Section 2(10) is:

''judgment-debtor'' means any person against whom a decree has been passed or an order capable of execution has been made.

Though a decree was passed against Govindaswami Pillai and his mother also in Original Suit No. 1455 of 1927, it is urged that the particular property which was purchased in Court auction by Chinnappan and taken possession of by him was put up for sale only in Execution Petition No. 401 of 1951, against Manickam Pillai and Manickam Pillai alone would be the judgment-debtor for the purpose of invoking Order XXI, Rule 100 in respect of Execution Petition No. 1147 of 1957. As a direct authority in support of this contention, learned Counsel cited Kundalata v. Chandra Kamini (1958) 60 C.W.N. 734. He also cited two other decisions, Narayanaswami v. Renuka Devi ILR (1960) Mad. 512 and Ramasami Konan v. Kulandaivelu Pillai (1921) 15 L.W. 272.

The last mentioned two decisions are not useful on the question before us and need not be discussed further. The decision in Kundalata v. Chandra Kamini (1958) 60 C.W.N. 734, however, supports the contention of the learned Counsel. But, with all respect to the learned Judges concerned, I am unable to agree that it lays down the correct law, having regard to the numerous and weighty authorities and principles discussed by me earlier. The facts in that case may be simplified thus. One Ashutosh executed a mortgage of properties mentioned in Kha schedule on behalf of himself and his minor children Kundalata and Kanakalata. After Ashutosh''s death, the mortgagee instituted a suit against his heir, namely; his son, Nitai and also against Kundalata and Kanakalata. The suit was decreed only against Nitai and dismissed against Kundalata and Kanakalata. In execution of the decree, however, Kundalata was dispossessed of her properties. She, therefore, filed an application under Order XXI, Rule 100 for being restored to possession. She succeeded only in part. Thereupon, she instituted the suit out of which the appeal arose, under Order XXI, Rule 103. The subject-matter of the suit was not merely Kha property but some other properties mentioned in Kha schedule. The trial Court decreed the suit in her favour. But the District Judge, on appeal, dismissed the suit holding that the suit was barred u/s 47. The learned District Judge relied on the explanation to Section 47 and pointed out that though the mortgage suit had been dismissed against Kundalata, still she was a party to the suit u/s 47 and, therefore, was bound to agitate the question only by an application under that section, which meant that she had to file an appeal and not a suit against the order passed against her in her application. In second appeal, however, the learned Judges of the Calcutta High Court held that Section 47 did not apply because the application of Kundalata, in their opinion, was properly one under Order XXI, Rule 100 because she was not a judgment-debtor according to the definition and the Code, provided a separate set of provisions under Order XXI, Rules 100 to 103 in such cases, namely, a suit, and, therefore, necessarily excluded the application of Section 47. In coming to this conclusion, they followed three earlier decisions of the same Court, namely, Satyendra Nath v. Charu Chandra (1927) 45 C.L.J. 557, Najibal Islam Molla v. Golam Afsar Molla ILR (1933) Cal. 1401 and Narayan Bera Vs. Jharu Mandal of Baratola and Others, .

Now it may be noted that so far as our case is concerned, there was a decree in Original Suit No. 1455 of 1927 against Govindaswami Pillai and his mother as well and, therefore, Govindawami Pillai was a judgment-debtor even according to the definition in Section 2 (10), and he could not, therefore, be called a person other than the judgment-debtor in Order XXI, Rule 100. But attaching importance to the definite article the in the words other than the judgment-debtor, it may be argued that the judgment-debtor contemplated in Order XXI, Rule 100 is only the judgment-debtor (Manickam Pillai in this ease) whose property is alleged to be sold in execution. But then we have one provision like Order XXI, Rule 100 under which the application of Govindaswami Pillai, Execution Application No. 1147 of 1957, would fall; we have also another provision like Section 47 under which the application of Govindaswami Pillai would have to be considered as one u/s 47 because as pointed out in the numerous decisions cited by me, in particular Julien Marret v. Mahomed Khaleel Shirazi and Sons (1929) 58 M.L.J. 275 (P.C.) of the Privy Council and the decision of Devadoss J., in Valluvanatkara Vallabha Valia Raja Avergal Vs. Valluvanatkara Manakata Kovilakath Vedaturath and Others, and of Anantakrishna Ayyar J., in Chengalraya Reddy and Others Vs. Kollapuri Reddi, , Govindaswami Pillai is a party to the suit and if otherwise the question relates to the execution, discharge or satisfaction of the decree, the question would fall for determination u/s 47 and a decision of the Court therein would be a decree under the definition in Section 2 (2) and it would be subject to a first appeal u/s 96 and a second appeal u/s 100. Where there is a conflict between the provisions contained in the rules in the First Schedule and the main body of the Code, the latter should prevail because of Section 128 of the Code which says that the rules shall not be inconsistent with the provisions of the body of the Code. In other words, Order XXI, Rule 100 will have to be read subject to the provisions of Section 47: otherwise the explanation to Section 47, which says that a Defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit, will be rendered a dead letter. If I am right in my view that the question raised by Govindaswami Pillai in Execution Application No. 1147 of 1957, that the property sold as Manickam Pillai''s was really Govindaswami Pillai''s is one relating to the execution and satisfaction of the decree so far as the auction-purchaser is concerned, it would follow that Section 47 applies and to that extent Order XXI, Rule 103 will have to give way to Section 47 and the remedy of Govindaswami Pillai would only be an appeal against the order of dismissal of Execution Application No. 1147 of 1957. In Kundalata v. Chandra Kamini (1958) 60 C.W.N. 734 there is no reference to the decision of the Privy Council in Julien Marret v. Mahomed Khaleel Shirazi and Sons (1929) 58 M.L.J. 275 (P.C.) or to the other decisions referred to by me and there is no discussion of the question as to how the conflict between Section 47 and Order XXI, Rule 103 should be resolved.

The decision Satyendra Nathv Cham Chandra (1927) 45 C.L.J. 557 which Kundalata v. Chandra Kamini (1958) 60 C.W.N. 734 followed is easily explicable and does not conflict with Section 47. There, one of the judgment-debtors filed an application under Order XXI, Rule 90. It was followed by the executing Court (Munsif), but on appeal it was ''dismissed by the learned Subordinate Judge. The judgment-debtor preferred an appeal to the High Court. It was held that no appeal lay and that the question did not fall u/s 47. The learned Judges support their conclusion by pointing out that the Code itself puts an order under Order XXI, Rule 90 upon a different category from orders passed u/s 47 of the Code. Thus an order under Order XXI, Rule 90 is subject to one appeal under Order XLIII. Rule 1 (j) as an appeal from an order u/s 104 (1), and 104 (2) says that no appeal shall lie from an order passed in appeal u/s 104 (1). In other words, there is no right of second appeal in respect of an order under Order XXI, Rules 90 and 92. Apart from this reasoning, it will be noted that the definition of decree in Section 2 (2) itself shows that while it includes the determination of any question within Section 47, it shall not include any adjudication from which an appeal lies as an appeal from an order. Since an appeal lies against an order under Order XXI, Rules 90 and 92 as an appeal from an order u/s 104 (1), an order under Order XXI, Rules 90 and 92 will not amount to a decree. But somehow this point was overlooked and the decision in Satyendra Nath v. Charu Chandra (1927) 45 C.L.J. 557 was given an extended application in Kundalata v. Chandra Kamini (1958) 60 C.W.N. 734 even in a case where the matter would fall u/s 47.

In Najibal Islam Molla v. Golam Afsar Molla ILR (1933) Cal. 1401 the facts were these. There was an earlier rent suit and a subsequent title suit. In the earlier rent suit, the decree had been obtained against Gandhari Bewa, the predecessor-in-title of Defendants 2 and 3 in the later suit and the property was purchased by the Plaintiff in Court-sale. The first Defendant in the later suit had also been impleaded in the earlier rent suit as a pro forma Defendant, because he was a co-sharer with the Plaintiff in the rent suit but no decree was obtained against him. The later suit was filed by the Plaintiff because he met with some obstruction in taking possession on the part of the first Defendant. The later suit was resisted on the ground that it was barred u/s 47. The Courts below had accepted that contention; but on appeal by the Plaintiff, the contention was rejected. The learned Judges held that there was no direct authority on the point and it was a matter of first impression and that the question between the Plaintiff and the first Defendant did not relate to the execution or discharge or satisfaction of the rent decree because the first Defendant was not liable to satisfy the decree for rent. The attention of the learned Judges does not appear to have been drawn to the Privy Council decision in Julien Marret v. Mahomed Khaleei Shirazi and Sons (1929) 58 M.L.J. 275 (P.C.) and to the other cases cited by me in which a contrary view was taken.

Narayan Bera Vs. Jharu Mandal of Baratola and Others, need not be discussed in detail because it turned on its own peculiar facts and the circumstance that in a previous application it was held that Jharu was not the representative of the judgment-debtor and it would, therefore, follow that he was entitled to apply under Order XXI, Rule 100 and further the auction purchaser was a stranger and that was before the amendment in 1956 making the auction-purchaser a party.

It follows, therefore, that Execution Application No. 1147 of 1957, was an application u/s 47 and the order therein amounted to a decree and the remedy of Govindaswami Pillai was only to prefer an appeal therefrom and not to file a separate suit.

Sri S. Rajagopalan then prayed that if I felt that the matter was governed by Section 47, I might treat the suit as an application u/s 47. I find, however, an impediment to doing this because of the order passed on 25th March 1959 in Execution Application No. 1147 of 1957. That was an application which, on the reasoning indicated by me, was itself an application u/s 47. It was decided on its merits, though only in a summary manner. The remedy of the Appellant was, therefore, to have filed an appeal against that order and if necessary a second appeal, and not to have filed a separate suit. This is absolutely clear from the authorities cited by me. On the principle of res judicata and on general principles, a second application u/s 47 cannot be entertained. This point directly came up before Varadaohabiab J. in Maddali Machamma Vs. Chaparala Kanakamma, . There the Plaintiff was the widow of a Defendant in a prior suit, Original Suit No. 16 of 1925. As he had died before execution, she was added as his legal representative. The decree-holder attached certain properties as belonging to the deceased husband. She filed an application Execution Application No. 252 of 1930, claiming that the attached property belonged to her under a sale deed of 1896 which had been executed by her husband. She quoted both Order XXI, Rule 58 and Section 47. The learned Subordinate Judge dealt with the application in a perfunctory way. Referring to the fact that the judgment-debtor had ignored the sale deed and mortgaged the property later as his own and that the claim was belated, he observed:

...I am not prepared to uphold the claim and refer the Petitioner to a regular suit. The petition is dismissed.

Thereupon the widow filed the suit which gave rise to the second appeal. The suit was dismissed as barred u/s 47. That view was upheld by Varadachariar J., who observed:

It is fairly well settled that when a person who has been impleaded as the L.R. of a Defendant or a judgment-debtor claims that certain properties attached as the property of the judgment-debtor are his own, his remedy is by an application u/s 47 and not by an application under Order 21, Rule 58;

The learned Judge pointed out that the remedy of the widow was to have appealed against the order of the learned Subordinate Judge dismissing her application, Execution Petition No. 252 of 1930. A request was made to treat the later suit as an application u/s 47. The learned Judge rejected this prayer observing;

If there had been no prior application by the Plaintiff and a decision thereof on the merits, it would no doubt be open to the Petitioner to make an application in terms of the present suit; but an application having been made in E. A. No. 252 of 1930 a second application would not lie unless I can go further and hold that that application was dismissed merely on the ground of late presentation on the assumption that Order 21, Rule 58, Civil P. C, applied to the case; if it is a decision on the merits, the Petitioner''s only remedy was to have appealed against that order and not to file a second petition. Mr. Satyanarayana Rao asks me to treat the order already set out in E. A. No. 252 of 1930 as a mere dismissal on the ground of delay and not as a pronouncement on the merits. It does not seem to me that the terms of the order permit of such a construction. The learned Judge refers to the conduct of the Petitioner''s husband and to the conduct of the Petitioner herself as reasons for holding that the claim is not bona fide or well-founded. It is certainly a decision on the merits.

The principle underlying the distinction made by Varadachariar J., between an application dismissed as belated and a petition dismissed on merits is evidently based on the definition of decree in Section 2 (2), namely decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47. Apparently where an objection is not decided at all on the ground that it is belated, there is no conclusive determination of the rights of the parties with regard to the matter. In this respect there may be difference between the dismissal as belated of a petition preferred u/s 47 and a dismissal of a claim petition filed by a stranger under Order XXI, Rule 58 as belated. In the later case even a dismissal of a claim petition as belated is dismissal which will become final unless it is set aside by a suit filed under Order XXI, Rule 63. The wording of Rule 63 is:

Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.

It has been held in Venkataratnam v. Ranganayakamma ILR (1918) Mad. 985 that a dismissal of a claim petition under Order XXI, Rule 68 as belated is also a dismissal for the purpose of Order XXI, Rule 63 which will become final unless set aside by a suit.

There is, however, another decision of the Bench of the Patna High Court in Bhan Kumar Chand and Another Vs. Ajhodhya Prasad Singh and Others, where it has been held that even in a case where a claim petition falling u/s 47, CPC was dismissed for default, a second application was held barred where there had been adequate time for the party to appear and sustain his objection by evidence. On that ground the High Court vacated the order of the learned Subordinate ''Judge treating the latter plaint as an application u/s 47. They referred to a decision of the Calcutta High Court in Akhoy Kumar Kar Vs. Krishna Chandra Saha, and pointed out that even in that case the Calcutta High Court had recognised that it was not open to a judgment-debtor to raise at a later stage of the execution proceedings objections which were raised at an earlier stage and which were dismissed on account of his default. But in that particular case the learned Judges came to the conclusion that the first objection of the judgment-debtor had not been disposed of in a satisfactory manner and that was why they entertained the objection on a second occasion.

The decision of Varadachariar J., and the above decision of the Patna High Court show that at any rate in a case where the objections of a Defendant to execution on the ground that it is his own property and not liable to be proceeded against in execution of the decree against another judgment-debtor are rejected on merits, even if it be on a prima facie consideration of the merits, it is not open to the objector to prefer a second application u/s 47. That is precisely the case here. The order, dated 25th March 1959, in Execution Application No. 1147 of 1957, was one on the merits, though it might have been only a summary disposal of the case. The remedy of Govindaswami Pillai was to have appealed and not to file a separate suit or a second application u/s 47. I must say, however, that I found some cases wherein a second application was entertained. They are Purmessuree Pershad Narain Singh v. Jankee Kooer (1873) 19 W.R. 90, Biru Mahata v. Shyama Churn Khawas ILR (1895) Cal. 483, Pasupathy Ayyar v. Kothanda Rama Ayyar ILR (1904) Mad. 64, Venkatakrishnama Charlu v. Krishna Rao ILR (1909) Mad. 425 and Kasiram Sowcar v. Vedachala Chetti (1931) 35 L.W. 103.

In Purmessuree Pershad Narain Singh v. Jankee Kooer (1873) 19 W.R. 90 an objection appears to have been taken in the execution proceeding itself; but the learned Subordinate Judge wrongly decided that the question would not be entertained in the execution proceedings but must be tried in a separate suit. Thereupon a suit was brought and the learned Judges held that she (Plaintiff) had acted perfectly bona fide, having been misled by the decision of the Judge and that because the suit was instituted in the Court in which an application u/s 11 of the Act XXIII of 1861, corresponding to Section 47 of the Code of 1908, should have been filed, there was no inherent want of jurisdiction for the Subordinate Court to try the suit, and the decision was confirmed. Now it appears from the report that the prior application put in by the Plaintiff was not decided at all and the Applicant was referred to a suit. As has been pointed out by Varadachariar J., and even by the Calcutta High Court and the Patna High Court in the decisions referred to by me, there may not be objections in such a case to entertaining a second application. But that is not the case here.

In Biru Mahata v. Shyama Churn Khawas ILR (1895) Cal. 483 a second suit was brought for possession of certain lands on the ground that they were not covered by the decree which the Defendant had obtained against the Plaintiff in a previous suit. It was found that the lands belonged to the Plaintiff and was not covered by the previous decree. Though the Defendant had taken possession of these lands at the time of the execution of decree, it was not clear whether he himself took possession or he was put in possession by the officers of the Court executing the decree. On the assumption, however, that he was put in possession by the officers executing the decree, the objection was taken to the second suit on the ground that the remedy of the Plaintiff was an application in execution u/s 244 of the Code of 1882, that there had been excess execution. This objection to the maintainability of the suit was, however, taken only in the first appeal and was repeated in the second appeal. The learned Judges of the Calcutta High Court observed that if the Defendant had not been put in possession of the excess lands by the officers of Court executing the decree, the objection u/s 244 of the Code would not lie and that being a question of fact and not one of pure law, could not be raised at a late stage. In any case they were prepared to treat the plaint as an application u/s 244. Here again, it appears from the report that the executing Court made no enquiry on the complaint made by the Plaintiff even in the execution proceedings and that was presumably, why, in addition to the other circumstances, the learned Judges were not weighed down by any consideration that a second application for the purpose would not lie.

In Pasupathy Ayyar v. Kothanda Rama Ayyar ILR (1904) Mad. 64 in Original Suit No. 238 of 1895, a decree was passed against Pasupathy Ayyar (Appellant in the High Court) for the surrender of possession of certain lands and for mesne profits and costs. The interest of the decree-holder in those lands was sold in execution of a decree in Small Cause No. 145 of 1896 and purchased by Kothandarama Ayyar (Respondent in the High Court). Kothandarama Ayyar applied for execution of the decree in Original Suit No. 238 of 1895, by placing him in possession of the property he purchased. His claim was rejected by the District Munsif. He, therefore, brought the suit, Original Suit No. 474 of 1900, in the same District Munsif''s Court to obtain possession of the properties. The defence was that the suit was barred by Section 244 of the Code of 1882, corresponding to Section 47 of the present Code. This plea was overruled by the Courts below and the suit was decreed. With regard to that plea, the Bench of this Court observed that Kothandarama Ayyar was not a transferee of all that was decreed in Original Suit No. 238 of 1895, because the right to mesne profits and costs had not passed to him. Therefore, he could not be considered to be a representative of the decree-holder to be barred by Section 244. However, even assuming that he should have proceeded only in execution, the Bench considered it a fit case where the plaint should be treated as an application for execution; for, soon after the sale to him, he had applied for delivery and that was refused by the District Munsif on the ground that he should seek his remedy in Small Cause No. 145 of 1896, in which the sale took place. That was obviously wrong. It was because of the error of the Court that he was obliged to file a second suit. This case again is distinguishable from the present case because the Court considered Execution Application No. 1147 of 1957, on merits.

In Venkatakrishnama Charlu v. Krishna Rao ILR (1909) Mad. 425 one Krishna Rao brought a suit, Original Suit No. 479 of 1899, in the Court of the District Munsif of Bellary against Venkatakrishnamacharlu and his two brothers G and K for recovery of money. Venkatakrishnamacharlu and K were exonerated with costs and a decree was passed against G alone. In execution of the decree, a printing press was attached. Venkatakrishnamacharlu intervened with a claim petition u/s 278 of the Code of 1882 and the attachment was raised. Thereupon Krishna Rao filed a suit, Original Suit No. 290 of 1902, in the same District Munsif''s Court against Venkatakrishnamacharlu for a declaration that the press was liable to be attached in execution of the decree against G. The Munsif held that the press belonged to the Defendant and dismissed the suit. An appeal was preferred by the Plaintiff to the District Court. After it was heard on merits, Venkatakrishnamacharlu for the first time raised the plea that the suit was in contravention of Section 244 of the Code (corresponding to Section 47). The Court disallowed the plea and on merits decided in favour of the Plaintiff. The Defendant preferred a second appeal which came up before the Bench of this Court. The Bench held that the proper remedy of the Plaintiff was to have filed an application u/s 244 in Original Suit No. 479 of 1899, but nevertheless dismissed the second appeal. In the first place they pointed out that since the suit was laid before the same learned District Munsif before whom the application u/s 244 should have been made, there was no inherent want of jurisdiction of the District Munsif and it could be deemed to be an application u/s 244. As to this it was contended for the Appellant that the suit could not be treated as a proceeding u/s 244 as there was already an application under that section on which an order was passed against him. The Bench, however, overruled this objection with the following observations:

But there were similar applications and orders in Pasupathy Ayyar v. Kothandarama Ayyar ILR (1904) Mad. 64, Biru Mahta v. Shyama Chum Khawas ILR (1895) Cal. 483 and in the case of Purmessuree Parshad Narain Singh v. Jankee Kooera (1873) 19 W.R. 90. It must also be noticed that the reason of the rule is, as pointed out by Couch, C. J. that the question is only one of procedure and does not affect the jurisdiction of the Court. We therefore disallow this contention.

They went on to point out that since the objection u/s 244 had not been raised till the stage of first appeal, it should not have been entertained at all.

Now it is difficult to reconcile this decision with that of Varadachariar J., in Maddali Machamma Vs. Chaparala Kanakamma, because the reason of the attachment on the claim petition preferred u/s 278 of the Code of 1882, could only have been after a consideration of the merits, and, if so, that would have the force of a decree and should have been got rid of only by an appeal and not by a separate suit. On principle, I have no doubt that the decision of Varadachariar J., is correct, if I may say so with respect, and there is no discussion in the Bench judgment of the point as to whether the decision in the previous claim petition u/s 278 would not amount to a decree. However, I do not feel pressed to refer the point to a Full Bench for over-ruling the Bench decision, because it seems to me to have been impliedly overruled by the decision of the Privy Council in Julien Marret v. Mohammed Khaleel Shirazi and Sons (1929) 58 M.L.J. 275 (P.C) and the Full Bench decision in Veyindramuthu Pillai v. Maya Nadan ILR (1919) Mad. 107. In Julien Marret v. Mohammed Khaleel Shirazi and Sons (1929) 58 M.L.J. 275 (P.C). Their Lordships of the Privy Council say that the previous order allowing the Plaintiff to withdraw the money remaining unappealed must be treated as effective.

In Veyindramuthu Pillai v. Maya Nadan ILR (1919) Mad. 107 it must be remembered that the question was whether an. appeal lay against the order of the learned Subordinate Judge and that depended on whether the matter was governed by Section 47. Actually the question was between a stranger purchaser in execution of a money decree against a particular judgment-debtor on the one hand and the decree-holder purchaser in execution of a mortgage decree against the same judgment-debtor on the other, and it was held that the question related to the execution, discharge and satisfaction of the decree in the mortgage suit and for that purpose the stranger purchaser in the money decree was a representative of the judgment-debtor for the purpose of the question in the execution proceedings in the mortgage decree. I am citing this only to show that once it is held that an objection by a judgment-debtor is u/s 47, the order is appealable and unless appealed against Will become final.

Kasiram Sowcar v. Vedachala Chetty (1931) 35 L.W. 103 was a decision of Curgenven J., following Venkatakrishnama Charlu v. Krishna Rao ILR (1909) Mad. 425. Actually, in that case, the previous claim petition had been dismissed as belated, the observation being made at the same time that a previous order had been passed that the sale would be at the decree-holder''s risk subject to any claim if the Plaintiff might succeed in establishing to the property. Thus, this decision of Curgenven J., where in spite of the previous application the subsequent suit was allowed to be treated as an application u/s 47, could be justified on the footing that the previous application had not been considered on merits but had been only dismissed as belated.

For the above reasons, I am unable to accede to the request of Sri S. Rajagopalan, to treat this suit as an application u/s 47. The dismissal of the suit has to be confirmed on the short ground of Section 47 and it is not, therefore, open to me to go into the question on merits. But if it had been open to me, the conclusion I would have come to is this. The Courts below are right in their reference to the western boundary. The western boundary in exhibit B-1, dated 27th March 1911 of the property sold by Ardhanari Pillai to Kasthuri Pillai, father of Manickam Pillar, was the itteri or pathway going to the channel (in the North). The description of the western boundary for the property sold in Court auction in Original Suit No. 1455 of 1927 to Chinnappan is that is east of the pathway going to the Kalingarayan Vaikal (in the North). These descriptions tally in respect of the western boundary. The description of the western boundary in the property purchased by Govindaswami Pillai''s father Muthuveera Pillai under exhibit A-12, dated 15th April 1913 is that is east of the house of Kasthuri Pillai. This description can be easily understood if we remember that earlier under exhibit B-1, dated 27th March 1911, the same vendor Ardhanari Pillai had sold the western property to Kasthuri Pillai. Hence it is clear that the property purchased by Muthuveera Pillai, father of the Appellant, under exhibit A-12 was only east of the property which had been purchased by Kasthuri Pillai and had descended to his son Manickam Pillai and was sold under exhibit B-3. Similarly, on a consideration of the northern boundary also, it is clear that the property purchased by Muthuveera Pillai under exhibit A-12 could not be what was sold under exhibit B-3, and that what was sold under exhibit B-3 was only what had been purchased by Kasthuri Pillai under exhibit B-1 and had descended to his son Manickam Pillai. Thus in exhibit B-1 the northern boundary is described that is south of the backyard of Thangamuthu Konar. The description of the northern boundary in the Court sale certificate (after rectifying the mistake) is south of Guruswami Konar''s house. Guruswami Konar is the son of Thangamuthu Konar referred to in exhibit B-1. The description of the northern boundary of the property purchased under exhibit A-12 is south of Mari Gounder''s property. Thus it is clear that the Plaintiff laid a claim to property which was not the property purchased by his father under exhibit A-12 if we consider the western and northern boundaries of the property which was sold in Court sale under exhibit B-3. But it seems to me that the Courts below have not paid adequate attention to the eastern boundary of the property which was sold in Court sale under exhibit B-3. It is clear from exhibit A-12 that the property sold thereunder to Muthuveera Pillai father of the Appellant, was the property, just east of the property which had been sold to Kasthuri Pillai under exhibit B-1. That demarcating boundary between the two properties does not appear to have been localised on the ground and considered by the Courts below. It is possible that what was sold under the Court sale exhibit B-3 and delivered to the auction purchaser covers also a portion or even the whole of what was purchased by Muthuveera Pillai under exhibit A-12. Merely because the Plaintiff came forward with an unjustified and extravagant claim, it will not be just to deprive him of what is legitimately due to him. If, therefore, I had held that the suit could be converted into an application u/s 47, I would have remanded the petition for further investigation on this limited point. But, as it is, the appeal against the order of 25th March 1959, being the only remedy open to the Plaintiff, I am unable to remand the matter for further enquiry. With these observations the second appeal is dismissed but without costs.