Sen, J.:— This is an appeal by a judgement-debtor and it arises out of the following facts.
One Abdul Rahim executed a simple mortgage in favour of the Kayastha Trading and Banking Corporation for Rs. 600, which was payable in two years. The property hypothecated consisted of three houses and the rate of interest agreed upon was one rupee percent, per mensem, at six monthly rests. The mortgagee assigned the mortgage to one Shamsuddin on the 19th of March, 1915. Abdul Rahim sold one of the mortgaged houses to Abdul Aziz, the appellant, on the 14th of June, 1918, for a sum of Rs. 1,100, out of which Rs. 601 were left with the vendee for payment of the mortgage debt in part. This payment was not made. Shamsuddin having died, his heirs, namely Musammat Shahidan Bibi and others, brought a suit on the mortgage, dated the 13th of April, 1912, against Abdul Rahim, Abdul Aziz and others. A preliminary decree was passed on the 13th of July, 1926. The final decree followed on the 14th of January, 1927. The decree-holder applied to the Munsif of Gorakhpur for the execution of the decree and Abdul Aziz applied that the house purchased by him on the 14th of June, 1918, be sold last in execution of the final decree. On the 15th of July, 1927, the Munsif acceded to this prayer and passed an order to that effect behind the back of Abdul Rahim. Shortly after the making of the said order, Abdul Rahim appeared in court and presented an application protesting against the order of the learned Munsif directing that the house property purchased by Abdul Aziz be sold last. On the 27th of August, 1927, the Munsif reviewed the order dated the 15th of July, 1927, and direct that the said order could be availed of by Abdul Aziz on this condition that he paid a sum of Rs. 601 to the decree-holder in satisfaction of the mortgage, together with interest on the said amount at one rupee percent, per mensem, compoundable every six months, from, the 14th of June, 1918, the date of his purchase, right up to the date of his payment.
Aggrieved by the aforesaid order, Abdul Aziz lodged an appeal in the court of the learned District Judge which was heard by the Second Additional Subordinate Judge of Gorakhpur. A preliminary objection was raised by the respondent as regards the competency of the appeal. The learned-judge accepted the preliminary objection and dismissed the appeal upon the ground that no appeal lay to him. The ratio of the decision was that the order dated the 27th of August, 1927, was passed in the course of an execution proceeding in which Abdul Rahim and Abdul Aziz, the rival judgement-debtors, were ranged on opposite sides and there was no question “between the parties to the suit” in which the decree was made, within the meaning of section 47 of the Civil Procedure Code.
Abdul Aziz appeals to this Court and urges that the, matter between the parties was one under section 47 of the Civil Procedure Code and that an appeal lay to the lower appellate court.
section 47 of the Civil Procedure Code provides:—“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 conflict of interest in the execution department was between two sets of judgement-debtors and there was no question between the decree-holder on the one side and one or other of the judgement-debtors on the other side, relating to the execution, discharge or satisfaction of the decree. It would be straining the language of section 47 of the Code of Civil Procedure to hold that a dispute of this description between two sets of contending judgement-debtors would fall within the purview of section 47. This question directly arose in Raynor v. The Mussoorie Bank Ltd. . After discussing the facts of the case Brodhurst and Tyrrell, JJ., observed at page 686: “This application purported to be made under section 244 of the Civil Procedure Code. But apart from other considerations showing that section 244 is not applicable to a proceeding of this character, it is sufficient here to observe that an application cognizable under that section must be an application between the parties, that is to say, between the parties arrayed against each other as decree-holder of the one part and judgement-debtors or their representatives of the other. But this is not such a question. It is a controversy of two judgement-debtors inter se, and the provisions of section 244 do not apply to the determination of such questions.” This statement of law was cited with approval in Anandi Kunwari v. Ajudhia Nath , and it was observed that the controversy was between a judgement-debtor and his representative and that it would be straining the language of section 244 to hold that such a dispute fell within the scope of that section. In Bhagwati v. Banwari Lal the majority of the Judges constituting the Full Bench expressed themselves in support of the above view. Banerji, J., is reported to have said (see page 98) that “as regards the first condition it is manifest that the parties must be arrayed as decree-holder or his representative on the one side and the judgement-debtor and his representative on the other. Any question arising between the decree-holder and his representative or between the judgement-debtor and his representative is clearly not a question within the purview of section 244. This has been held so repeatedly that I deem it unnecessary to cite authorities.”
The learned counsel for the appellant relies upon the case of Vedaviasa Aiyar v. The Madura Hindu Labha Co. Ltd. . Their Lordships rule in that case that section 47 of the Civil Procedure Code ought to admit of a liberal interpretation and should not be confined to cases where the question in controversy, was between the decree-holder and the judgement-debtor. It is submitted with all respect that the above view is not supported by the language of section 47 of the Civil Procedure Code and is opposed to the cursus curiae of this Court which I am bound to follow.
The order not being one under section 47 of the Code of Civil Procedure, no appeal lay to the lower appellate court. It is not contended that the order was appealable independent of section 47, and it is also not contended that order XLIII of the Code of Civil Procedure applies. The result is that the appeal fails and should be dismissed with costs.
Niamat-Ullah, J.:— I entirely agree with my learned brother in the conclusion he has arrived at and would dismiss the appeal. I, however, rest my decision on a different aspect of the case. I am of opinion that the question arising between the parties to this appeal, namely, whether the court of first instance was justified in imposing certain conditions for the property, in which the appellant is interested, being sold last is not one relating to “the execution, discharge or satisfaction of the decree” and for that reason the order impugned in this appeal is not one which can be regarded as an order passed under section 47 of the Civil Procedure Code. I hesitate in accepting the view that section 47 of the Code of Civil Procedure can, under no circumstances, apply to an order passed by a court executing the decree as between two judgement-debtors inter se. The relevant part of section 47 is this:—“All questions arising between the parties to the suit, in which the decree was passed, or their representatives, and relating to the execution, discharge gr satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.” As I read the section, all that is necessary to be made out for its application is that the parties between whom a question relating to the execution, discharge or satisfaction of the decree arises should have been parties to the suit whether arrayed on the same side or on opposite sides. The word “between” does not, in my opinion, imply that such parties should have been arrayed as plaintiff and defendant. The words “between the same parties” occur in section 11 of the Civil Procedure Code and it has been repeatedly held in relation to questions of res judicata that parties arrayed on the same side may have a conflict of interest and a decision arrived at on questions between them in a suit in which they are arrayed on the same side operates as res judicata in a subsequent suit in which they are arrayed on opposite sides. Some of the reasons for the view taken by the learned-judges of the Madras High Court in the case referred to by my learned brother merit consideration. In a suit for partition, or for rendition of accounts, or in an administration suit, after a decree has been passed questions may arise between the parties, arrayed on the same side in the course of execution proceedings and if the scope of section 47 of the Code of Civil Procedure is narrowed down only to cases in which questions relating to execution, discharge or satisfaction of the decree arise between the decree-holder and the judgement-debtor, the very object underlying that section may be frustrated. While I am not prepared to dissent from the authorities which my learned brother has quoted in support of his view, I venture to express my hesitation in accepting that view as absolutely correct and of general application. As I agree in dismissing the appeal on another ground I need not examine the view in all its aspects and content myself by merely reserving; ray opinion on the question.