Jaganmohan Reddy, C.J.
(1) These two appeals are against the Judgment of our learned brother Chandrasekhara Sastry J., in CMSA 25 and 26 of 1964 whereby he reversed the judgments and decrees of the two lower Courts in applications in execution proceedings.
(2) The relevant facts have been stated by our learned brother and they are as follows: The property, which is the subject-matter of these appeals, belonged to one Kuppi Reddi, who died possessed of the said properties. He left a widow, who during her lifetime, started alienating some of the properties and the nearest reversioner, one Ada Reedy, challenged those alienation's in OS No. 588 of 1954 on the file of the District Munsif's Court, Chittoor. During the pendency of that suit, it may be stated that one Sivananda Reddi, who is the present appellant, then a minor, filed a suit OS. No. 215 of 1955, on the file of the same Court claiming to be the adopted son of the Kuppi Reddi. The defendants in that suit were some of the aliens as also Ada Reddi, the plaintiff in OS. No. 588 of 1954. The adoption of the appellant herein was challenged in that suit and ultimately OS. No. 215 of 1955, was dismissed on the ground that the adoption was neither true nor valid. OS. No. 588 of 1954 was decreed. While there was an appeal (A. S. No. 208 of 1956 on the file of the District Court, Chittoor) against the judgment in OS No. 215 of 1955, there was no appeal filed and the judgment in OS No. 588 of 1954 and the judgment therefore became final and the alienations which were challenged by Ada Reddi were set aside. The District Judge, Chittoor dismissed A. S. No. 208 of 1956 of 15-4-1957 confirming the finding of the trial Court that the plaintiff-appellant's adoption was neither true nor valid. But before the appeal was actually disposed of. Ada Reddi sold part of the property to the respondents in these appeals on 11-3-1957 and after the dismissal of the appeal, those sale deeds were registered. Against the judgment and decree dismissing the appeal, the appellant before us filed a second appeal, S. A. No. 902 of 1957. The respondents in these appeals having come to respondents in these appeals having come to know that there was a likelihood of a compromise behind their back between Ada Reddi and the appellant applied to be brought on record as respondents 2 and 3 though the application was opposed, having regard to a judgment of Umamaheswararm J., in Venkata Narasimha Raju v. Yellamanda : AIR1960AP32 , they were brought on record for the purpose of supporting the judgment negating the adoption. During the pendency of this appeal, Ada Reddi died and his legal representatives were brought on record as respondents 4 to 6. Thereafter, the appellant and respondents 4 to 6 filed C. M. P. No. 10206 of 1962 to pass a decree in terms thereof. This petition prayed for the following:
(1) That the adoption of the appellant Sivanandareddi to late Kuppireddi be declared.
(2) That the appellant-plaintiff do take possession of the plaint schedule-mentioned properties through Court.
(3) That the parties do bear their own costs in all the Court.
This compromise was opposed by respondents 2 and 3 therein and they prayed that the matter should be disposed of on merits which however involved the adjudication of the status of the appellant, as an adopted son. Finding that this may lead to embarrassing results having regard to the concurrent finding of both the Courts, a supplemental memo of compromise was filed before Seshachalapati, J. For passing a decree on the following terms:
(1) That Sivananda is the adopted son of late Kuppireddi.
(2) That the appellant-plaintiff shall take possession of the plaint schedule properties through Court:
(3) That the compromise shall not affect the rights of the respondents 2 and 3 herein.
(4) That this appeal shall stand dismissed against respondents 2 and 3 subject to their right to question the truth validity and binding character of the alienation's made in their favour by the deceased 1st respondent on the 1st respondent or his legal representatives in appropriate proceedings; and
(5) That each party do bear their own costs in this appeal and the Courts below:
It may be stated that respondents 2 and 3 therein were not parties to this compromise and an order was passed on 3-12-1962 on the following terms: 'A memo of compromise has been filed and signed by the Appellant and respondents 4 to 6 praying for a decree in terms of the compromise. A supplemental memo has today been filed signed by the advocates for the appellant and respondents 4 to 6 to the effect that the appeal relates to respondents 2 and 3 may stand dismissed, subject, however, to their right to question the truth, validity and binding character of the alienations in their favour made by the deceased 1st respondent on the 1st respondent or his legal representatives in appropriate proceedings. There shall be a decree in terms of memorandum of compromise filed in C. M. P. No. 10206 of 1962. The terms of the supplemental memorandum filed today should also be incorporated in the decree.'
Pursuant to this a decree was passed in the following terms. We extract them below in so far as they are relevant for our purposes.
'.....................And in terms of the said Memorandum of compromise decree, order and decree as follows:
1. That Sivananda Reddi appellant is the adopted son of late Kuppi Reddi.
2. That the appellant-plaintiff shall take possession of the plaint schedule properties through court:
3. That the compromise shall not affect the rights of the respondents 2 and 3 herein;
4. That this appeal shall stand dismissed against respondents 2 and 3 subject to their right to question the truth, validity and binding character of the alienations made in their favour by the deceased 1st respondent on the 1st respondent or his legal representatives in appropriate proceedings.'
We may also extract the supplemental memo.
'The appellant and respondents 4 to 6 herein pray that the status of the appellant as the adopted son of Kuppi Reddi may be declared and that as consequence he would be entitled to the suit schedule properties. This compromise would not affect the rights of the respondents 2 and 3 as against whom the appeal shall stand dismissed; subject to the sales in favour of respondents 2 and 3 being auctioned as true, valid and binding on the 1st respondent, his legal representatives in appropriate legal proceedings.
(3) After the termination of these proceedings, the next proceedings commenced in the executing Court where the appellant filed an execution petition for obtaining possession of the plaint schedule property, and obtained possession of the properties sold to the respondents in both these appeals, who were respondents 2 and 3 in the second appeal in which a compromise decree was passed. The respondents obstructed the delivery of possession of the ground that they were in possession and applied to the executing Court for restoration of their possession under Order XXI, Rules 99, and 101, C. P. C., That application was opposed by the appellant on the ground that the executing court had no jurisdiction to go into these matters having regard to Order XXI, Rule 102 read with the explanation. The District Munsif in a short order dismissed the application and stated that it was a case where the petitioners had to get their decree amended and in so far as he was concerned, he could not go behind the decree. The respondents appealed. The District Judge, also dismissed the appeal on the ground that clauses 3 and 4 of the decree did not safeguard the rights of the respondents to the property and since possession had already been given, he could not restore it. Our learned brother, Chandrasekhara Sastry, J., after a careful consideration of the several contentions urged before him held that clause 4 of the compromise decree gave right to respondents 4 to 6 to question the sale in favour of respondents 2 and 3 herein and not that it was respondents 2 and 3 that had to file a suit to establish their rights. Secondly, the decree-holder took possession from the alienees-respondents and that they are bound to restore the same. It was also observed that O. XXI, Rules 99 and 101, C. P. C. May not apply though section 47 clearly applied.
(4) Before us Mr. R. Venugopal Reddy has urged the same points and we therefore deal with them in the order in which findings have been set out above. We have given a brief history leading to the compromise and the actual terms of the compromise which will show that the respondents in these appeals had brought themselves on record merely with a view to establishing validity of these sales in their favour which in turn would result in the determination of the validity or otherwise of the adoption of the plaintiff-appellant. There is absolutely no doubt that if that question had to be gone into, the appellant would have been at a disadvantage and consequently the supplemental memo throws a flood of light on what was intended by the parties. It may be noticed that under the Transfer of Property Act, any person purchasing property, which is the subject-matter as a suit or appeal, during the pendency of that litigation takes it subject to lis pendants viz., subject to the final result of the suit or appeal. The alienations in favour of the respondents in these appeals were therefore subject to his pendent. But when the appellant and the legal representatives of Ada Reddy compromised they the respondents would be entitled to ask an adjudication of the status of the appellant and if the appellant was in fact not the adopted son, there would be no question of the alienation, being set aside.
When the appellant and the legal representatives of Ada Reddi compromised and obtained a decree in terms of which the appeal against respondents 2 and 3 in the Second Appeal was to be dismissed and that the decree would not to be dismissed and that the decree would not be binding upon the said respondent what in effect they meant was that they would not insist upon the alienation being questioned. In other words, they withdrew the plea of his pendent. To put it differently when the appeal against the respondents was to be dismissed, the respondents succeeded in that appeal and that in so far as their property is concerned, the finding of the lower Court that the appellant was not the adopted son would be confirmed. If this is the result, their is no question of the appellant having any right to challenge the validity of the alienation and the only reservation was that the legal representatives of Ada Reddi had a right to challenge the alienation in separate proceedings. That clause has no reference whatever to the appellant and he cannot have recourse to the terms of the decree to challenge the alienation in favour of the respondents, much less contend that the plea of lis pendens could be successfully pleaded for the purpose of R. 102 of O. XXI, C. P. C. In these circumstances, we do not think that the learned Advocate's submission that the application of the respondents is not entertainable has any merits. Section 47 clearly gives jurisdiction and the respondents can get relief under that provision if they are entitled.
(5) The next question the possession of the respondents viz., whether the appellant dispossessed them in execution of the decree. Before the executing Court, no doubt the appellant stated that the alienations were fraudulent and that no possession in fact was given to the respondents. The appellant did not choose to have the issue determined and was ex parte. The executing Court proceeded on the assumption that the respondents were in possession and considered only question whether under the decree they could be dispossessed and whether he could be reinstated. Before the first appellate Court also, one of the appellant's contentions was that the compromise decree entitled the respondents to have possession of all the suit properties (including the properties in the possession of the appellant). The words underlined (underlined portion is herein bracketed: ED.) clearly indicates that the appellant had conceded that the decree was executed against the respondents therein who were in possession of the lands. Our learned brother, while dealing with the argument, for the first time advanced before him, that the appellant had no possession at all and that the possession was with the alienee from the widow, observed that the objection did not seem to have been urged before the lower Courts because this objection did not find place in either of the judgments of the Courts below and was not considered. Apparently the plaintiff's learned counsel thought that there was no substance in that objection. We are in respectful agreement with this view of our learned brother. We must hold that the question of possession was never in fact agitated by the appellant before either of the Courts below and consequently he cannot be now heard to complain.
(6) On the last of the questions, whether rules 99 to 101 of Order XXI, C. P. C. Will apply or whether section 47, C. P. C., would apply Mr. Venugopala Reddy could not but admit that in the lower Courts the whole argument proceeded on the assumption that section 47 does not apply and no appeal would lie and consequently no second appeal would lie. The argument before our learned brother therefore proceeded on the assumption that section 47 C. P. C., applied. Not was this point raised before our learned brother, Chandrasekhara Sastry, J., Even otherwise, we are supported in our conclusion that section 47 C. P. C. Is applicable by a judgment in Vibhudapriya Thirthasami v. Vidianidhi Thirthasami, (1899) ILR 22 Mad 131 where it was held that defendant against whom no decree has been passed, but whose rights are invaded in execution, is entitled to come under Civil Procedure Code, Section 244 (of the Code of 1882), corresponding to section 47 C. P. C., and to appeal against an order made in such proceedings. This view was confirmed in a Full Bench judgment in Ramaswami Sastrulu v. Kameswaramma (1900) ILR 23 Mad 361 (FB) at page 366, it was observed:
'...............when a party defendant in a suit is exonerated from such suit, the suit being dismissed against him and a decree passed against a co-defendant in the suit and in execution of that decree property belonging to, and in the possession, of the defendant who was so exonerated from the suit is attached and sold, the latter is not entitled to maintain a suit for recovery of possession of the property, and that the question of his claim to, and to recover possession, of the property is a question falling within section 244 Civil Procedure Code of 1882 (Section 47 of the present Code) so as to debar him from maintaining such suit.'
Before the Full Bench, it was argued that the words 'parties to the suit in the section must be limited to the judgment-creditors and judgment debtors, because they are the only persons between whom questions could arise 'relating to the execution, discharge or satisfaction of the decree or to the stay of execution thereof.' This contention was repelled.
In the view we have expressed on the several contentions raised before us, these appeals are dismissed with costs in each of the two appeals.
(7) Appeals dismissed.