Sulaiman, Ag. C.J.
1. This is a decree-holder's appeal from an order passed by the execution Court allowing certain objections of the judgment-debtors. Under a mortgage of 1904 in favour of Bansidhar Kuar Sen and Jagannath 5 biswas shara in village Nawada had been sold in execution and purchased by Shadi Ram. Under another mortgage of the same date in favour of Cheddan Lal and others, another 5 biswas share was sold in execution of the mortgagees' decree and purchased by Shadi Ram. Under the third and fourth mortgages of the same date in favour of Brijbasi Lal 20 biswas of Nawada were again sold at auction and purchased by Kure Mal This sale was subsequent to the two previous sales. Kure Mal sold 10 biswas to Shadi Earn, and after some years sold whatever rights he had left in the remaining 10 biswas to the sons of Shadi Ram.
2. Nand Kishore held a mortgage of 1910 on which he sued impleading Bansi Dhar and others, Chhedan Lal and others, Shadi Ram and others, but not impleading Brijbasi and Kunwar Sen. After the purchase made by Shadi Ram and before the disposal of the suit by the first Court Ganpat Rai died, and after his death neither the name of his nor after him that of his son's widow was brought on the record as his legal representative. In the suit of Nand Kishore Bansi Dhar and others as well as Cheddan Lal and others failed to prove their mortgages of 1904 which they had set up. The High Court by its decree declared that they have no priority as against Nand Kishore. Nand Kishore in execution of his decree applied for the sale of 10 biswas of Nawada. Objections were raised by the sons of Shadi Ram to the effect that they had acquired these 10 biswas in execution of the decree on the basis of the previous mortgage in favour of Brijbasi Lal which had priority as against Nand Kishore's mortgage. They also set up the prior mortgages in favour of Bansi Dhar and others and Cheddan Lal and others.
3. The decree-holder replied that this objection could not be raised in the execution department at all. The Court below has held that the objector can raise this objection under Section 47, Civil P.C. and has allowed this objection. Nand Kishore has accordingly appealed to this Court, inasmuch as the Court below has treated the objection before it as being one under Section 47, Civil P.C. An appeal lies to the High Court even if it were ultimately held that the proceedings were not properly started under that section.
4. The learned advocate for the appellant relies on the case of Srimati v. Sahu Nand Kishore : AIR1930All826 , and urges that it is not open to the objectors to set up their rights acquired either under the first purchase from Kure Mal 'which was before the decree of the first Court in Nand Kishore's suit or under the second purchase from Kure Mai which was after. that decree. It seems to us that the case quoted above is no authority for the proposition that rights acquired after the 5 decree cannot also be set up. The Bench of which one of us was a member, when referring to the interest acquired by Mt. Srimati, pointed out that owing to the point not having been raised in the objections filed in the Court below and there being an implied admission to the contrary, Kunwar Sen who had not been impleaded in the suit and who was, by the way, a brother of Bansi Dhar, could not be treated as having an independent and separate right of his own in the mortgage. But it was certainly held by the Bench in that case that
if a person who has been impleaded as a subsequent mortgagee omits to set up his prior mortgage in the suit and allows the decree to be passed for sale, he cannot be allowed to set up his alleged paramount title in the execution department.
5. The question whether he could do so in a separate suit was left open.
6. It seems to us that if the objectors were powerless to prevent either the preliminary decree or the final decree from being passed for the sale of this share they should be equally powerless to resist the execution of such decree so far as the execution department is concerned. We are not prepared to say that it is not open to a judgment-debtor to prevent the passing of a final decree if a part of the property included in the preliminary decree has been acquired by him pendente lite under a paramount title. But it is quite clear that if he does not or cannot prevent the passing of such a decree, he should not be allowed to be heard in the execution department and prevent the sale of the property covered by the decree passed against himself.
7. We are therefore of opinion that the objection of the heirs of Shadi Ram as regards the share purchased by them before the suit was finally disposed of cannot be raised in the execution department.
8. As regard the 10 biswas purchased from Kure Mal after the disposal of Nand Kishore's suit the learned advocate for the appellant contends that there had not remained any such share to be sold in the execution of Brijbasi Lal's decree. The argument is that Brijbasi Lal was a party to the suit brought, by Bansidhar and others and Gheddan Lal and others and the sale of 5 biswas each in their mortgage decrees passed the property to the purchaser Shadi Ram even as against Brijbasi Lal, with the result that Brijbasi Lal would subsequently sell more than the remaining 10 biswas. It is therefore contended that the last transfer of Kure Mal conferred no title on the objectors at all. The learned advocate then proceeds to argue that in view of the finding of the High Court in Nand Kishore's suit, Bansidhar and others and Cheddan Lal and others cannot now set up their priority as against the mortgage of Nand Kishore inasmuch as they failed to prove their mortgages in that suit. It is therefore urged that the two 5 biswas sold on the first two occasions are subject to the mortgage of Nand Kishore. The learned advocate for the respondents replies that the appellant cannot blow hot and cold at the same time. He cannot in one breath urge the plea of res judicata on the ground that the previous mortgagees had lost their priority because the mortgages of 1904 were not proved and also urge that the sale in execution of decrees on these mortgages were effective as against Brijbasi Lal.
9. It seems to us that these questions can be gone into more satisfactorily in a regular suit than in a miscellaneous execution proceedings, especially as we are of opinion that the objections cannot be raised properly under Section 47, Civil P.C. We accordingly allow this appeal and setting aside the order of the Court below send the case back to that Court with direction to convert; the objections filed by the objectors into a plaint under Section 47(2), Civil P.C. and allow the objectors to amend the objections so as to make them take the shape of a proper plaint with liberty to add additional facts which they wish to add. The decree-holder appellant will of course have the right to file a written statement and raise any pleas, whether they have or have not so far been raised. The plaint should be registered as a suit and disposed of according to law. As the point raised by Mr. Banerji does not appear to have been raised in the Court below and is not expressly mentioned in the grounds of appeal before us, we direct that the parties should bear their own costs of the proceedings in both the Courts.
10. If the present objectors apprehend that the 10 biswas in dispute would be sold before their rights are finally adjudicated upon they would be at liberty to apply to the Court below hearing the suit for injunction. It would be for that Court to decide whether their prayer should or should not be granted.