Stuart and Kanhaiya Lal, JJ.
1. This appeal arises out of execution proceedings. It appears that a mortgage was made on the 5th of August, 1882, by Nirmal Singh, the predecessor in interest of the judgment-debtors respondents, hypothecating 21/2 biswa of mahal No. 3 in Bajhera Bhagwanpur in favour of Basant Rai, the father of the decree-holders appellants. In the settlement of 1899 mahals Nos. 2 and 3 were amalgamated and formed into a single mahal. The 21/2 biswa share of the mahal No. 3, which was mortgaged with Basant Rai, corresponds with 3 bighas 18 biswansis and odd of the amalgamated mahal No. 2.
2. Subsequently a suit was filed by the grandsons of Musammat Umed Kunwar for the recovery of the entire old mahal No. 3 and a decree was obtained, in pursuance of which they obtained mutation of names in their favour against Jit Singh, the son of Nirmal Singh. Later on the mortgagee filed a suit on his mortgage and got a decree against the judgment-debtors respondents, in execution of which the 21/2 biswa share of old mahal No. 3, which was described as corresponding with 3 bighas 18 biswansis and odd of the new mahal No. 2, was brought to sale and was purchased by the decree-holders themselves. Subsequently they obtained possession over the purchased property and got mutation of names effected in the revenue papers by the removal of the names of the judgment-debtors respondents in respect of that share. The present application was then filed by the judgment-debtors, who asserted that the auction purchasers had taken possession of their property which was outside the mortgage. The courts below found that the auction purchasers had taken possession of the property of the judgment-debtors' outside the mortgage, and holding that the objection was entertainable under Section 47 of the Code of Civil Procedure, directed restitution.
3. On behalf of the auction purchasers it is contended that the judgment-debtors cannot go behind the decree which was passed against them, and that in any case their objection ought not to have been entertained under Section 47 of the Code of Civil Procedure. It appears that the judgment-debtors held a share in old mahal No. 2, which was not mortgaged. Order XXI, Rule 100, has no application because that rule is confined in its operation to persons who are not judgment-debtors and have been dispossessed of the property claimed by them. The judgment-debtors here complain that they have been dispossessed of their property which appertained to old mahal No. 2 and was not covered by the decree. The question is, is this objection maintainable under Section 47 of the Code of Civil Procedure? If the decree had Been one for possession, the question would have been answered in the affirmative. In fact this was so held in Abdul Karim v. Islam-un-nissa Bibi (1916) I.L.R. 38 All. 339. But in the present instance the possession of the disputed property has been obtained by a person who is an auction purchaser of that property in execution of a decree obtained on foot of a mortgage made by the father of the judgment-debtors. An auction purchaser might be treated as a representative in one sense of the decree-holder and in another of the judgment-debtor, and it is questionable whether a dispute about the identity of the property sold, between a person who has acquired the rights of the judgment-debtors and the judgment-debtors, can be entertained under Section 47 of the Code of Civil Procedure. In Bhagwati v. Banwari Lal (1908) I.L.R. 31 All. 82 it was held that a suit by an auction purchaser for possession of the property purchased by him against the judgment-debtors can be maintained and that Section 244 of the old Code of Civil Procedure would not bar such a suit. The principle of that decision is applicable to the present case and we are not prepared to hold that the objection in the present instance was rightly entertained. It is not necessary to go into the other matters raised in the appeal. It is open to the judgment-debtors to obtain any relief to which they might be entitled by way of a regular suit.
4. We allow the appeal and setting aside the order of the courts below, disallow the application with costs here and hitherto. The judgment-debtors respondents will bear their own costs throughout.