Shambhu Prasad Singh, J.:— Bibi Aisha, owner of holding No. 1285 (new holding No. 1728) within Ranchi Municipality obtained an order of eviction against Pardeshi Wali Mohammad from the court of Controller at Ranchi. Under Section 18 (as then it was) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, (Act 3 of 1947), that order could be executed as a decree by a Civil Court having jurisdiction over the matter, Hence, Bibi Aisha filed a petition in the Court of Munsif at Ranchi for execution of the said order. Before the disposal of that petition, Bibi Aisha died in 1963. Her two sons and two daughters, who are respondents in this appeal, and her husband, Juman Mian, got themselves substituted in place of Bibi Aisha as decree-holder. In 1967 Juman Mian too died. On 3rd of October, 1969, when the petition of the respondents for delivery of possession was pending, appellant Akhtar Ali, son of Afzal, a brother of Juman Mian, also filed a petition. His case was that Bibi Aisha had made an oral gift of the said house to him in the year 1962 and the tenant had put him in possession over it. Thus, according to him, the decree stood satisfied and there was nothing to be executed.
2. According to the children of Bibi Aisha, i.e, the respondents, neither their mother made an oral gift of the house to the appellant, nor the tenant delivered possession of it to him. Therefore there was no substance in the petition of the appellant and it was fit for dismissal. The executing court held that the petition of the appellant was maintainable under Section 47 of the CPC (hereinafter referred to as ‘the Code’ in this Judgment) and Bibi Aisha did make an oral gift of the house to the appellant. The lower appellate court held that the application was not maintainable under Section 47 of the Code and Bibi Aisha did not make an oral gift of the house to the appellant. Hence, it dismissed the petition. The appeal is directed against the aforesaid order of the lower appellate court.
3. Learned counsel for the appellant, Mr. Lal Narain Sinha, has argued that the finding of the lower appellate court that the application of the appellant was not maintainable under Section 47 of the Code is correct and that no appeal could be filed before the lower appellate court against the order of the executing court on such a petition. Therefore the finding of the said (lower appellate) Court that Bibi Aisha did not make an oral gift of the house to the appellant was beyond its jurisdiction and illegal. Learned counsel, however, conceded that if the appeal could he before the lower appellate court, then its finding regarding oral gift was one of fact and could not be set aside by this Court. According to learned counsel for the respondents, the finding of the lower appellate court that appellant's petition was not maintainable under Section 47 of the Code was wrong and the appeal was not beyond its jurisdiction.
4. The main portion of Section 47 of the Code is as follows:—
“47. (1) 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.
(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.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall for the purposes of this section, be determined by the Court.”
5. Apparently, according to Section 47(3) of the Code, the question whether the appellant or the respondents are the representative of Bibi Aisha should be determined by the very court which is executing the decree. Hence, the question can be gone into under that section. There is nothing in sub-section (3) on the basis of which it can be said that the question cannot be gone into under that sub-section. However, according to the contention of learned Counsel for the appellant, sub-sections (1) and (3) are complementary to each other and it is neither possible nor proper to construe sub-sec. (3) without the help of sub-section (1). In this connection, learned counsel for the appellant drew our attention to tome decisions of this High Court and other High Courts. I shall refer to them later on. In these decisions it has been held that only such questions relating to execution, discharge or satisfaction of the decree which arise between the parties opposed to each other can be gone into under Section 47(1) of the Code, that is, if the question is only between the decree-holders or their representatives, then it cannot be gone into under the said sub-section. Similarly, if the question is only between judgment-debtors or their representatives, then also that cannot be gone into under that sub-section. Such an interpretation of the term party in sub-section (1) may be reasonable, but when it has been expressly laid down in sub-section (3) that the question as to whether any person is or is not a representative of the party shall for the purposes of the section be determined by the court executing the decree, in my opinion it will not be proper and beyond doubt to give the word ‘party’ a limited meaning of parties opposed to each other. Learned counsel for the appellant could not convincingly criticism the correctness of the aforesaid view, but he submitted that as other Benches of this Court in their decisions have supported the contrary view, it would not be proper for this Bench to take this view and if this Bench thought that the decisions of other Benches of this High Court were not reasonable, it ought to refer the appeal to a Full Bench for decision.
6. In my opinion, for the decision of question arising in this appeal, it is not necessary to hold that any previous decision of a Bench of this Court is wrong. Two kinds of questions relating to the execution, discharge or satisfaction of a decree may arise between decree-holders if they are more than one or the representatives of a decree-holder; firstly, questions decisions whereof affect them only and do not affect the judgment-debtor at all, and secondly, questions decisions whereof affect the judgment-debtor also. Similarly two kinds of questions may arise between judgment-debtors or representatives of a judgment-debtor; firstly, such questions decisions whereof affect them only and secondly, such questions decisions whereof affect the decree-holder as well. In my opinion, under sub-sections (1) and (3) of Section 47 of the Code all questions which arise at the instance of the decree-holders or their representatives and in respect whereof they are at difference with each other or which arise at the instance of the judgment-debtors or their representatives and in respect of which they are at difference with each other, if their decisions affect the judgment-debtor or the decree-holder in relation to execution, discharge or satisfaction of the decree, then really they are questions arising between the decree-holder and the judgment-debtor. Therefore, such questions shall be deemed to be questions between parties opposed to each other and can be gone into under Section 47 of the Code. It has all ready been stated earlier that according to the appellant, the tenant delivered the possession of the house to him and thus the decree stood satisfied. Hence, the decision of the question whether the decree stands satisfied or not is implied in the decision of the question who is the representative of Bibi Aisha, the appellant or the respondents. In my opinion, in this case, the question arising for decision between the appellant and the respondents also affects the judgment-debtor. Therefore, the question can be gone into under Section 47 of the Code.
7. Now I would take up for consideration decisions of other High Courts and this High Court cited by learned Counsel for either side in support of their arguments. Of these, Ratanlal v. Bai Gulab, (1899) ILR 23 Bom 623, Annamalai v. Ramaswami, AIR 1941 Mad 161 and Laxminarayan Devastan, Poona v. Khanderao, AIR 1954 Bom 446 are some such decisions of other High Courts which though support the contention of learned counsel for the appellant that ‘the parties’ in sub-section (1) of Section 47 of the Code means parties opposed to each other, but really are not against the view expressed by me earlier. In the case of Ratan Lal v. Bai Gulab, the plaintiff's suit was dismissed with costs by the High Court against defendants Nos. 2 and 3. Only defendant No. 3 filed an application before the executing Court for execution of the aforesaid decree for costs. Defendant No. 2 opposed that application. In the opinion of the executing Court, as the decree was in favour of both defendants Nos. 2 and 3, the question arising for decision between them could not be gone into by it. Hence, it dismissed the application of defendant No. 3. Defendant No. 3 appealed to the High Court. The High Court also dismissed the appeal of defendant No. 3 against that order. It is apparent that the decision of the question whether the decree for costs could be executed by defendant No. 3 alone or by both, defendants Nos. 2 and 3, had no effect on the judgment-debtor. In AIR 1941 Mad 161 (FB), the question arising for decision was as to possession of the suit land between a stranger auction-purchaser and another person who had purchased the said land from the judgment-debtor. A Full Bench of the Madras High Court decided that as both were representatives of the judgment-debtor the question between them would not be gone into under Section 47 of the Code. It is also apparent from the facts of that case that the decision of the question had no effect on the decree-holder. In AIR 1954 Bom 446, the question which arose for decision was only between the decree-holders as to rateable distribution. Justice Shah while deciding that no appeal could the to the High Court under Section 47 of the Code against the order of the lower court on that question also expressly observed that decision of the said question had no effect on the judgment-debtor.
8. In S. Mangayya v. S. Sriramullu, (1913) 19 Ind Cas 448, a Bench of the Madras High Court has observed that in considering the question whether an appeal lies under Section 47 of the Code or not, the substance of the order of the lower court shall have to be looked into. The question cannot be decided merely on the basis of provision of law referred to in the order of that court. The learned Judges decided that the question between the two defendants, judgment-debtors, as to which property should be auction-sold first in execution of a mortgage decree could be gone into under Section 47 of the Code and appeal would the against the order passed by the lower court on that question. In Lalchand Radhakisan v. Ramdeyal Ramnarayan, AIR 1939 Bom 112, Chief Justice Beaumont (Justice Sen concurring with him) held that where the order passed by the lower court relating to rateable distribution affects not only decree-holders but also the surety and the judgment-debtor, then an appeal would the against that order under Section 47 of the Code. In Shriram Nathuji v. Co-operative Society No. 55, Chandur, AIR 1949 Nag 398, Justice Mudholkar has observed that when a dispute, though between parties ranged on the same side is such as to affect a party ranged on the opposite side, it falls within Section 47 of the Code. These three decisions support the view taken by mo.
9. Of the decisions of this High Court, learned counsel for the appellant drew our special attention to Md. Abdul Matin v. Mt. Bibi Hamidan, AIR 1932 Pat 329. A decree for costs was passed in favour of one Munshi Umed Ali. Of his several representatives, one filed an application for execution of his share in the decree. Other representatives opposed this application on the ground that the share of the representative who had applied for execution was really less than what he had claimed. The executing Court determined the share of various representatives. One of the representatives appealed to the District Judge against the said order. As the suit was valued at Rs. 5,000/-, the District Judge returned the memorandum of appeal for filing before the High Court. The appeal was filed here but it was dismissed on the ground that as the question was not between parties opposed to each other, it could not be gone into under Section 47 of the Code. This Bench decision is also not against the view taken by me earlier, because the decision of the question between the representatives of the decree-holder did not affect the judgment-debtor in the least. In the case of Mt Amiran v. Mt. Kaniz Aisha, AIR 1934 Pat 627, after the death of the decree-holder some of his representatives got the decree executed and purchased the property of the judgment-debtor. Purchaser of the share of one of the representatives of the decree-holder also filed a petition for setting aside the auction sale. The executing court dismissed that petition and its order was confirmed by the lower appellate court. There was an appeal to this Court and the Bench hearing it held that as the petitioners and the auction-purchasers, were not parties opposed to each other in the suit, no second appeal could he here under Section 47 of the Code. It is not clear from the decision as to what was the basis on which the petitioners had filed his application for setting aside the auction sale. Therefore, it is difficult to say what effect the decision had on the judgment-debtor. Further, the Bench treated that appeal as a revisional petition and examined all questions raised on behalf of the petitioner and found no substance in them. In the circumstances that decision too cannot be said to be against the view taken by me.
10. In Smt. Lalmani Kuer v. Smt. Raghubansi Devi, AIR 1944 Pat 307, Sinha, J., (with whom Beevor, J., agreed) held that a dispute between a person claiming the decree-holder as his benamidar and the representative of the decree-holder as to who could execute the decree was within the jurisdiction of the executing court under Section 47, sub-section (3) of the Code. In Rehi Damodar v. Sone Basant*, AIR 1952 Pat 333 also B.P Sinha, J. (Mahabir Prasad, J., concurring with him) decided that the question who was the representative of the judgment-debtor could be gone into under Section 47 of the Code. The question arose between two persons who were brought on the record as representatives of the judgment-debtor, but the decision of it affected the decree-holder as well. In Noor Zaman Khan v. Mt. Maimunnissa Bibi, AIR 1958 Pat 228, Kamla Sahai, J., sitting singly relying on the decision in the case of Smt. Lalmani Kuer observed that the question who was the representative of the decree-holder or the judgment-debtor, specially when the dispute was whether only one of them was representative or all were representatives, could be gone into under Section 47, sub-section (3) of the Code. Referring to the case of Md. Abdul Matin, the learned Judge said that the only question in that case was what was the share of the representative and, therefore, it was clearly distinguishable. In my opinion, no decision of this Court has been cited before us on the basis of which I may be compelled to say that the view taken by me is against that decision.
11. Learned counsel for the appellant did not argue that the petition of the appellant could not have been filed before the executing court. According to him, the petition could be filed under S. 146 of the Code and the executing court was competent to dispose it of, but it was not maintainable under Section 47 of the Code. It is apparent from the reasoning given earlier, that the application of the appellant was maintainable under Section 47 of the Code and appeal could he to the lower appellate court against the order passed on it by the executing court.
12. Learned counsel for the appellant did not advance any other argument in support of the appeal. In the result, the appeal is dismissed with costs.
B.D Singh, J.:— I agree.
13. Appeal dismissed.
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