This is second appeal by the defendants against whom a decree has been passed. The parties shall hereinafter be referred to as plaintiffs and defendants.

2. The facts giving rise to this appeal are as follows—

Plaintiff No. 1 Meerabai is the legally wedded wife of one Bharatsingh, who was the owner of field Survey No. 6/1 admeasuring 29 acres of village Dadapur in Chandrapur district. The field was in possession of the plaintiff since it was handed over to her by Bharatsingh in the year 1952 in lieu of maintenance. This possession was confirmed by said Bharatsingh by executing another agreement in favour of plaintiff No. 1 in the year 1968. Again in the year 1973, Bharatsingh executed a Will and confirmed the right of plaintiff over the field for her maintenance. Plaintiff No. 2 is the foster son of Bharatsingh. Defendant Nos. 1 and 2 are not directly related to Bharatsingh. The plaintiff, however, gives a genealogy as follows—

3. Hanumansingh and Ramnathsingh were the real brothers but were separate in mess and property. It is the contention of the plaintiff that plaintiff No. 1 was in possession of the property consistently since 1952. However, Bharatsingh instituted a Civil suit against the plaintiff in 1964 for possession of the same. The suit was resisted by plaintiff No. 1. The suit came to be dismissed by the Civil Judge, Waroda. Bharatsingh, therefore, preferred an appeal before the District Judge, Chandrapur. The appeal was allowed and the suit was decreed. As a result of this, plaintiff No. 1 Meerabai preferred a second appeal in the High Court in the year 1966. During pendency of this appeal, it is alleged that Bharatsingh executed a second agreement of 1968 and thereafter also executed a Will of 1973. Bharatsingh died on 1-5-1974 during pendency of this appeal. The plaintiffs submit that since plaintiff No. 1 was the only heir left behind by Bharatsingh, she did not prosecute the appeal further. Second appeal was, therefore, disposed of by the court on 13-7-1975. The defendants, however, applied for execution of the decree that was passed in favour of Bharatsingh. In pursuance of that decree, it is alleged that the plaintiffs were dispossessed. It is the contention of the plaintiffs that when defendants substituted their names in the execution court, no notice whatsoever was given to the plaintiffs and they have been illegally dispossessed. In view of this, the plaintiffs sought possession of the suit property.

4. The defendants No. 1 and 2 resisted the suit. The defendants denied the relationship of the plaintiffs with Bharatsingh. They denied that plaintiff No. 1 is the legally wedded wife and plaintiff No. 2 is the foster son. According to the defendants, plaintiff Nos. 1 and 2 had illicit relations with each other. The defendants denied that Bharatsingh had executed a document in favour of plaintiff and she was put in possession thereof. The defendants were not aware of Civil Suit No. 214 of 1962 filed by Bharatsingh against the plaintiffs until they received notices from the High Court in Second appeal. The defendants admit that they started the execution proceedings against the defendants and have obtained the possession. They submit that they have followed the due procedure of law. The plaintiff No. 1 is not the legal representative of Bharatsingh. It is the defendants' denial that any Will was executed in favour of plaintiff No. 1 by Bharatsingh. They submit that even before or after execution of the said Will, Bharatsingh was mentally and physically not fit. He had become bed ridden and had lost power of understanding. Further, it is the contention of defendants that the suit as filed is not maintainable in view of the provisions contained in section 47 of the Code of Civil Procedure.

5. On these pleadings of the parties, the learned judge of the Trial Court framed many issues. He found that plaintiff No. 1 was the legally wedded wife of Bharatsingh. He also found that Bharatsingh had executed an agreement in favour of the plaintiff as well as Will and it was valid. He found that plaintiff No. 1 had not lost her right of inheritance due to adulterous life. He further found that the defendants had failed to prove that the plaintiff No. 1 was estopped from putting forth her claim on the basis of Will before the High Court. It was further found that Hanumansingh and Ramnathsingh were joint and therefore Hanumansingh had equal share in the property. He also found that defendants were not heirs of Bharatsingh and were not entitled to possession of the suit property. Holding so, he decreed the suit.

6. The learned Judge of the appellate court also concurred with the finding recorded by the Trial Court. He found that in spite of the provisions contained in section 47 of Civil Procedure Code, the suit was not barred. Being aggrieved by this concurrent findings, this appeal is preferred by the defendants.

7. The appeal was initially admitted by Mutalik, J. on the following substantial question of law.

“Even though there is concurrent finding of facts given by both the courts below, taking into consideration the validity of so-called Wills in or about the years 1884 and 1904 and the previous litigation between the parties, Second appeal stands admitted.”

8. After hearing the leaned counsel for the appellants and the respondents, three more substantial questions of law have been formulated.

1. Whether the plaintiffs could have instituted a civil suit instead of filing an application under Order 21, Rule 99 of Civil Procedure Code after dispossession since further rules contemplate that all questions relating right, title and interest have to be determined in proceedings in execution and not by a separate suit?

2. Whether the plaintiffs had available the relief under Order 21, Rule 97 of Civil Procedure Code?

3. Whether the finding of courts below with regard to ownership is recorded without there being evidence and therefore perverse?

9. I have heard Shri R.K Deshpande, Advocate for the appellants and Shri Badhe, Advocate for the respondents.

10. There is a concurrent finding of fact that Meerabai — the plaintiff is the wife/widow of deceased Bharatsing and this finding of fact is in fact now final. That is not challenged before me.

11. A few undisputed facts may be narrated so as to limit the controversy and discussion. In 1962, Bharatsing had filed Civil Suit No. 214 of 1962 against plaintiff Meerabai and two others, claiming possession of the suit land on the basis of title and dispossession. The trial Court had dismissed the suit but the appellate court in Appeal No. 99/64 reversed the decree of Trial Court and passed a decree in favour of Bharatsing for possession. The copy of the judgment is Exh. 75. Meerabai had preferred second appeal in the High Court being Second Appeal No. 187 of 1966 and order of abatement of appeal came to be passed on 13-2-1975, as legal representatives of Bharatsing were not brought on record. In view of the fact that the appeal preferred by Meerabai — the plaintiff, abated, decree passed by first appellate court in Civil Appeal No. 99 of 1964 had assumed finality. This decree was executed by defendants claiming themselves to be the heirs of Bharatsing and thus secured possession of the suit property.

12. Shri R.K Deshpande, learned counsel for the appellants, contended that the plaintiff has been dispossessed in execution of decree being judgment-debtor and that, therefore, she had remedy either under Order 21, Rules 97, 99 or section 47 of the Code of Civil Procedure and she could not have instituted a separate suit. He contends that section 47 as well as Rule 101 of Order 21 prohibit institution of separate suit and both provisions mandate that all questions relating to right, title and interest should be decided in those proceedings only and not by a separate suit. He contends further that, therefore, this could have been done by the court executing the decree.

13. As far as provisions of rule 97 onwards are concerned, they cannot have an application to the instant case. Rule 97 onwards fall under title “resistance to delivery of possession to decree holder or purchaser”. Necessarily, therefore, there must be some kind of dispute between decree holder and some person with regard to the delivery of possession of the property. In the instant case, there was no dispute or resistance to the delivery of possession. In fact, the possession was taken by the defendants without any kind of resistance at all. To my mind, therefore, neither Rule 97 nor any Rule including 99 applies to the instant case. Rule 99 cannot apply, as it applies to person other than judgment-debtor who is dispossessed. The plaintiff is a judgment-debtor in the decree and it is for this reason I say that Rule 99 also does not apply. Consequently, there is no question of application of Rule 101 further. Shri Deshpande, learned counsel, had relied on the decision of the Supreme Court reported in (2003) SCC 219, Ashan Devi v. Phulwasi Devi. Their Lordships have held as follows—

27. There is fallacy in the above reasoning. As has been held by this court in the case of Brahmdeo Chaudhari a third party resisting or obstructing the execution of the decree can also seek adjudication of his rights under Order 21, Rule 97 in the same way as the decree-holder. If that be so, it seems illogical that the third party which complains of actual dispossession because of the delivery of possession in execution to the decree-holder should not be allowed to claim adjudication of his rights through the executing court. An interpretation of the provision which promotes or fulfils the object of the amended provisions of the Code of curtailing litigation, has to be preferred to the one which frustrates it. The High Court also lost sight of the fact that the property involved was a vacant land and it could have been possessed only by having ownership and control over it. Mere physical absence of the third party at the time of execution of the decree was not a relevant fact to reject application under Order 21, Rule 99 of the Code. From the trend and ratio of decisions of this Court surveyed above, if the objectors would have been present at or near the vacant land at the time of execution of a decree and had offered obstruction or resistance to the execution, they would have been entitled to seek adjudication of their rights and claims through the executing court under Order 21, Rule 97. On the same legal position and reasoning even though the objectors were not in actual and physical possession of the vacant land, but as a result of delivery of possession of the land through Nazir to the decree-holder, lost their right and control over the land to put it to their use, they will have to be treated to have been “dispossessed” within the meaning of Order 21, Rule 99 of the Code. Such interpretation would fulfil aim and object of the amended provisions of the Code by allowing adjudication of disputes of title between the decree-holder and the third party in the executing court itself without relegating them to an independent litigation.”

14. What is held is that a third party has a right to get his claim adjudicated under Order 21, Rule 97. This ruling has no bearing on the case at hand because the person dispossessed is not a third party but judgment-debtor himself.

15. Now remains the question of application of section 47 of the Code of Civil Procedure. section 47 of Civil Procedure Code. Reads as follows—

“47. Questions to be determined by the Court executing decree — (1) All questions arising between the parties to the suit in which the decree was passed, or the 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.

(2) (****)

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purpose of this section, be determined by the Courts.

[Explanation II — (a) for the purpose 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.

Explanation II — (a) For the purpose of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.”

16. By 1976 amendment, sub-section (2) was deleted and a new explanation was added. The decree in this case was executed on 31-10-1975 i.e before the amendment to section 47. As far as sub-section (1) is concerned, there is no change in it at all. Shri Deshpande, learned counsel for the appellants submits that, the question of delivery of possession and whether the executants of the decree were representatives of the original decree holder or not would be the questions falling under section 47 as they relate to execution and discharge. He contended that whether the defendants/executants of the decree could have executed the decree or not must be gone into by the executing court. In the instant case, one thing that needs to be taken note of is the effect of the agreement (Exh. 61) and the Will Exh. 62. Both these documents were executed by Bharatsing during the pendency of second appeal of Meerabai being Appeal No. 187 of 1966. Although there was a decree in favour of Bharatsing in force, he executed Exh. 61 on 28-3-1968 and the Will on 15-5-1973. The suit is essentially based on these two documents. These two documents having been executed after passing of the decree, their effect will have to be seen as well as the intention of the parties. Courts below, in fact, have held that there was no bar under section 47. They seem to have relied upon the decision of the High Court. But it seems to me that the question whether a suit is maintainable or not would depend upon the intention of the parties as well as the facts of that case. It is the case of the plaintiff that while names of defendants came to be substituted in place of deceased decree-holder, she was not noticed at all. The present defendants executed a decree as representative of Bharatsing. In fact, it was necessary before substitution, to notice the plaintiff Meerabai and it was also necessary to issue notice to her under Rule 22 of Order 21 of Civil Procedure Code. On the record of the Trial Court, there is a certified copy of the warrant of possession. It shows that at the time of execution of warrant, no intimation was given to judgment-debtor at all. It was, therefore, not even possible for the judgment-debtor to obstruct the delivery of possession and then claim before the court that the defendants i.e substituted decree-holders were not entitled to execute the decree. The decree is already executed. There is no question now of determining the executability or the person who actually executed a decree have had such authority or not. These questions could have been decided prior to the actual execution of the decree i.e delivery of possession. Once the decree has been executed, the only remedy open to the judgment-debtor was to reclaim possession on the basis of title and therefore, to my mind, in this particular case the plaintiffs suit was maintainable.

17. There is yet another reason why I find that the suit is maintainable. We have seen that the warrant came to be executed on 31-10-1975 and this suit came to be filed on 18-10-1976 i.e before coming into force of the amendment to section 47 whereby Sub-section (2) of section 47 was omitted. This amendment had come into effect on 1-2-1977. The suit having been filed before the omission of Sub-section (2) of section 47 of Civil Procedure Code, its effect will have to be considered. Sub-section (2) of section 47 before its omission was to the following effect.

“(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees.”

18. It enables the court to treat the proceedings under section 47 of Civil Procedure Code as a suit or suit as a proceedings. Thus, the court can treat a suit as a proceeding under section 47. I find the suit, therefore, to be maintainable. The contention of Mr. Deshpande, therefore, has to be negatived.

19. It was contended that there is no evidence about the title of the plaintiff. The defendants have pleaded in para 11 of the written statement that the suit property belonged to Hanumansingh and Ramnathsingh jointly. It is pleaded that Hanumansingh had half share in the suit field. Naturally even, according to defendant, Ramnathsingh had half share in the suit property. It is, therefore, not that Ramnathsingh had no share at all. Bharatsingh is grand son of Ramnathsingh while defendants are grand-daughters of Hanumansingh. The documents on record need to be seen in this context. The copy of the Khasara of the year 1970-1971 to 1973-1974 show that the name of Bharatsing is recorded. With the above admitted facts the entries in the revenue record assume evidentary value. The entries in the revenue record become enough coupled with interest of Ramnathsingh in the suit property. It was for the defendants to show that the entries could not be relied on for certain reasons. It must, therefore, be said that the contention that there was no evidence of ownership has no value. The decision reported in 2007 (6) Mh. L.J (SC) 609 : 2007 (6) SCC 737 (Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale) cited to me has no bearing as there is an admission of title of Ramnathsingh. Bharatsingh is the grand-son of Ramnathsingh and the title would naturally therefore pass in his favour.

20. The courts below have concurrently held that the agreement and Will of 1973 are proved by the plaintiffs and they proved the ownership of the plaintiffs. Another thing that needs to be taken into account is that the plaintiff is claiming possession not only on the ground of illegal dispossession but on the basis of right acquired by her after the decree was passed. This has, therefore, given her a separate cause of action to realise the possession on the basis of the title. In view of this, I do not find any substance in the appeal. It is dismissed. No order as to costs.

Appeal dismissed.