A. Narayana Pai, J.
1. The petitioner obtained a decree against the respondent in O. S. No. 150/52-53 on the file of the lower Court. The respondent claiming that he has paid the decree amount in full, filed Misc. Case No. 249 of 1955 under Order XXI Rule 2 of the Code of Civil Procedure for entering up satisfaction of the decree. This application was opposed as having been filed beyond the period of limitation prescribed therefore under Article 174 of the first schedule of the Limitation Act. In view of this opposition the respondent did not press that application. Subsequently he filed the present application. Mis. Case 356/1955, out of which this revision arises.
2. This subsequent application purports to be one made under Sections 47 and 151 of the Code of Civil Procedure and the prayers are to enter full satisfaction of the decree in O. S. 150/52-53 and to convert the application into a suit. The lower Court taking the view that Section 47 of the Code permits a proceeding under that section to be converted into a suit, subject only to any objection as to limitation or jurisdiction, has allowed the respondent's request and treated the Mis. Case as a suit.
Regarding jurisdiction, the lower court observes that the question whether the suit must continue in the lower court or he sent to some other court will be determined after the proceeding is treated is a suit. The revision petition is directed against this order of the lower court converting the Mis. Case into an original suit.
3. There can be no doubt that the order of the lower court is manifestly wrong and that the respondent has entirely misconceived his remedy.
The argument on behalf of the respondent is that when a judgment debtor who has satisfied the decree out of court discovers that the decree-holder has not certified the satisfaction to the court as required by Order XXI Rule 2 (1) after the period of 90 days prescribed by Article 174 of the Limitation Act he, the judgment-debtor, can apply to the Court under the provisions of Section 47 and that for such an application, he would have the benefit of the longer period of limitation prescribed under Article 151 of the Limitation Act.
Having made such an application, the argument proceeds, he can ask the executing Court to convert the application into a suit because as an executing court it is prohibited by Sub-rule (3) of Rule 2 of Order XXI from recognizing the uncertified payment. This argument is based on a series of fallacies. In the First place an application by a judgment-debtor under Sub-rule (2) of Rule 2 of Order XXI undoubtedly raises the Question of satisfaction of the decree which has got to be determined as between the judgment-debtor and the decree-holder; this would ho a matter for determination by the executing Court under Section 47 of the Code; thus it is clear that such an application would come within the ambit of Section 47, whether it is filed before or after the expiry of 90 days from the date of satisfaction.
When a period of limitation is expressly provided for such an application under Article 174 of the Limitation Act, there is no scope for invoking Article 181 which applies solely to an application for which no period of limitation is provided elsewhere in the schedule of the Limitation Act. It is not open, therefore, to a judgment-debtor to get over the period of limitation prescribed by Article 174 of the Limitation Act by simply omitting to cite Order XXI Rule 2 (2) at the head of his application.
Secondly once it is conceded, as it has to be, that the question raised by the application is one relating to satisfaction of a decree, Section 47(1) expressly requires that it shall be determined by the executing Court and not by a separate suit. When, therefore, an executing Court finds that it is prevented from recognising an uncertified satisfaction of the decree by reason of Order XXI Rule 2 (3), all that it can do is to refuse to recognize the satisfaction and dismiss the application.
If, however, it converts the application into a suit, it is really permitting the applicant (judgment-debtor) to agitate by way of suit a question as to satisfaction of a decree which in terms of Section 47(1) could only be determined by the executing Court on application made to it by any of the parties to the decree or their representatives. In other words, it is permitting the judgment-debtor to do something which Section 47 expressly prohibits him from doing.
In effect the executing Court is not converting an application into a suit, but converting itself into an original court or a trial court, which is certainly not what Sub-section (2) of Section 47 permits. That sub-section is intended only to prevent inconvenience and injustice caused by bona fide mistakes as to the nature of the remedy originally chosen, when such mistake is discovered at a late stage in the proceedings or in appellate or other superior courts. It is not intended to save trouble to careless litigants, who choose the wrong remedy and their mistake is discovered or pointed out sufficiently early. It is certainly not intended to help a litigant to evade express provisions of the Statutes of limitation and procedure, as obviously the respondent herein, intended to do.
4. The learned counsel for the respondent argues that the petitioner herein has misconceived his remedy. According to him, the order sought to be revised is an appealable order and that therefore the petitioner should have filed an appeal before the District Court and not come to this Court with the revision. He states that an order under Section 47(2) of the Code of Civil Procedure converting art application into a suit is a determination of a question within Section 47 which is deemed to be a decree under Section 2(2) of the Code and hence appealable as a decree.
This argument cannot be accepted. Before an order passed under Section 47 can amount to a decree, it must be one which conclusively determines the rights of the parties in controversy with regard to a question relating to the execution, discharge or satisfaction of the decree. Any and every order under Section 47 is not a decree within the meaning of the Code. The order now under revision does not determine or adjudicate conclusively upon any such question. It merely converts the proceeding from an application into a suit.
It cannot, therefore, be said to be a decree and as such appealable. The matter is too clear for argument and no authority is necessary to support it. There is, however, an express decision on the question reported in Ramanuja Naicker v. Soliappa Naicker AIR 1931 Mad 270, where it has been held that no appeal lies from an order merely allowing a conversion of an execution petition into a suit as permitted by Section 47 of the Code for the reason that the order, though passed under Section 47, is not one relating to the execution, discharge or satisfaction of the decree.
The ruling in Mani Shanker v. Niranjan Swamp : AIR1955All686 , relied upon by the learned counsel for the respondent does not help him. In that case the order in question was held to amount to a refusal to execute the decree and therefore would fall within the definition in Section 2(2) of the Code. The learned Judges distinguished the Madras case cited above on the ground that the facts were different. This objection to the maintainability of the revision has, therefore, to be rejected.
5. The learned counsel for the respondent finally submitted that the application having been already converted into a suit and the petitioner herein having already filed his written statement therein raising the plea that the suit is not maintainable, no purpose will be served by interfering with the order now under revision. The learned Counsel for the petitioner while admitting these facts argues that the order of the lower Court may itself be cited in support of the maintainability of the suit and that that is the reason why he was constrained to file this revision petition.
I think the petitioner was justified in coming to this Court and that the order of the lower court cannot be allowed to stand to embarrass the petitioner in substantiating his plea that the suit is not maintainable. The original application filed by the respondent in the lower court, which has since been converted into a suit, is not among the records sent up to this Court in connection with this revision petition.
The reason obviously is that the application having been converted into a plaint is now with the Munsiff's Court, Bangalore City, to which Court, I am told by the learned Counsel, the suit has since been transferred. It is stated at the Bar that in addition to the prayer to enter up satisfaction of the decree, the application also contained a prayer for repayment to the applicant (the respondent herein) of the money said to have been paid by him in excess of what was due under the decree.
The application itself is not before me and I am not, therefore, in a position to have an accurate idea of the nature of the prayers. The question of maintainability of the suit is also a matter to be gone into in the course of the trial of the suit. I do not, therefore, express any opinion on the question of the maintainability of the suit either as a whole or in part.
6. The Civil Revision Petition is allowed and the order of the lower court set aside. The respondent will pay the costs of the petitioner both here and in the Court below.
7. Petition allowed.