1. The only question for decision in this appeal is whether the suit was maintainable or whether the plaintiffs-appellants' remedy lay in an application under Section 47 of the Civil Procedure Code to the executing Court.
2. The facts of the case are given in the judgment of the Court below and are briefly these for the purposes of this judgment. The respondent No. 1 had a mortgage from one Har Prasad. This was dated 9th of August 1897. Har Prasad sold his share, which was four annas, to appellant No. 1 and the predecessor in-title of the remaining appellants. There was a pre-emption suit by Mt. Akbari Begum, the predecessor-in-title of the respondents other than the respondent No. 1, with respect to the four annas share sold by Har Prisad. Mt. Akbari Begum's suit was compromised and by that compromise Mt. Akbari Begum obtained two annas share out of four annas and the plaintiffs retained the remaining two annas. The plaintiffs or their predecessor-in-title also held a mortgage from one Har Prasad, but nothing turns on that for the present. Chiranji Lal brought a suit for sale of Har Prasad's four annas property, but omitted to make Mt. Akbari Begum or her representative parties to it. He made the present appellants or their predecessors-in-title parties with the allegation that they had purchased the entire property sold. The suit was not defended and was decreed ex parte. In the execution proceedings the decree-holder described the property as property in the possession of the appellants. That is a description which finds place in the sale certificate and also in the dakhalnama or acknowledgment of delivery of possession executed by the auction-purchaser. Chiranji Lal himself purchased in execution of his decree. The appellants now come and say that they held only two annas share in the property of Har Prasad, that the remaining two annaa share was in the possession of the respondents other than Chiranji Lal, and that therefore back possession over two annas. It seems to be the case that by several purchases the appellants own 12 annas share in the mahal, while the respondents other than Chiranji Lal own the remaining four annas share. It was because the plaintiffs owned more than two annas share that Chiranji Lal found it convenient to obtain possession over four annas share and also a mutation of names in his own favour in the revenue Court.
3. The Courts below have dismissed the suit on the ground that a suit would not he, and the remedy of the appellants lay by an application to the executing Court.
4. The question seems to be concluded by a recent judgment of this Court viz., Munna Lal v. The Collector of Shahjahanpur A.I.R. 1923 All. 470. That case is very similar to the facts of this case. In that case also the purchaser was originally the decree-holder and their Lordships held that when a question arose between auction-purchaser and the judgment-debtor, as to what was the property that was sold, the matter was one to be investigated by a separate suit and not by as application m the execution Court. This ruling follows the Full Bench case of Bhagwali v Banwari Lal (1909) 31 All. 82. I may point out that the opinion that the position of a decree-holder is changed by his purchasing by auction is also supported by a recent Full Bench case of Bombay in Hargovind Pulchand v. Bhudar Raoji A.I.R. 1924 Bom. 429
5. If such be the case, viz., if Chiranji Lal s position of a decree-holder has been altered by his auction-purchase, the question raised is no longer one between a decree-holder and a judgment debtor. In this view the suit was maintainable.
6. For the respondent No. 1, it was argued that the question of fact in issue is really concluded by the judgment in the case. This point was not decided by the Courts below and I have not got enough material before me to decide it.
7. I allow the appeal, set side the decree of the Courts below and remand the suit to the Court of first instance through the lower Appellate Court with the direction that it be restored to its original number and disposed of according to law.
8. Costs here and hitherto will abide the result. The costs in this Court will include counsel's fees on the higher scale.