1. This is curious case in which much confusion has been caused owing to the circumstances that an execution case as well as a regular suit relating to the same crops were before the same officer.
2. Originally Jwala Prasad brought a suit against Sewa Singh and others impleading one Chuttan also. He obtained a decree against the other persons, but Chuttan was exempted. He put in an application for attachment of certain crops and the attachment was made and the crops thus came under the custody of the Court. Chuttan instead of taking objections in the execution department filed a regular suit in the same Court for a declaration that the crops did not belong to the judgment-debtor. While that suit was pending, an application was made by Chuttan praying that the crops being perishable property should be handed over to some other person for realisation of their price. It is not quite clear whether this application was made in the execution department or in the regular suit; though it is obvious that it ought to have been made on the execution side. But from what can be gathered from the record it is possible that it was wrongly made in 'the regular suit. It has been assumed all along that the learned Munsif passed an order-that order itself is untenable-that Kalimuddin, the son of Chuttan, be entrusted with the crops; and this fact is admitted by Kalimuddin. He sold the crops. By the time he had realised the amount it appears that Chuttan's suit was decreed by the first Court. On the strength of the first Court's decree he paid half the amount to Chuttan and the other half to the tenants. Subsequently the decree holder applied to the Court that Kalimuddin be called upon to refund this amount. The Court said that as matters then stood Chuttan had already obtained a decree in his favour and Kalimuddin could not be called upon to refund the amount.
3. After this Chuttan's suit was dismissed in appeal. Moved by the decree-holder the execution Court on the 1st of February 1920 ordered that Chuttan and Kalimuddin should pay the sum of Rs. 1,000 which it found to be the value of the crops entrusted to Kalimuddin, in Court and in default the money to be recovered in the way in which execution of a decree takes place,
4. On appeal to the District Judge this order was affirmed. On second appeal to the High Court a learned Judge of this Court has allowed the appeal and set aside, the order altogether directing that the appellant Jwala Prasad should seek his remedy by a separate suit.
5. It is necessary to consider the position of the two persons Kalimuddin and Chuttan separately.
6. So far as Kalimuddin is concerned he was no party to the execution proceedings nor was he a party to the regular suit. If ho be treated as altogether a stranger no appeal lay from the order passed by the Munsif directing him to refund the amount. It is possible, however, to treat Kalimuddin as a receiver appointed by the Court under Order 40 of the Code of Civil Procedure. In that case the order against him to pay back the amount would be an order under Order 40, Rule 4 which would be appealable as an order, but even in that view no second appeal would lie to this Court. It is therefore quite clear that no appeal lay to the learned Judge of this Court on behalf of Kalimuddin.
7. As regards Chuttan, there is this thing to be said that he was both a party to the execution proceedings, though exempted from the decree, and also in the original suit, but when Kalimuddin was entrusted with the crops he became an officer of the Court. If Kalimuddin wrongly paid any part of the amount to Chuttan the proper person to make a refund of it is Kalimuddin and not Chuttan. I therefore think that the view of the learned Judge of this Court that there should have been no order against Chuttan is quite correct. But the order against Kalimuddin could not have been interfered with in second appeal.
8. I entirely agree with what has fallen from my learned brother. I would point out only one matter and it is this. Chuttan was a party to the decree, although the decree passed was in his favour. Having been exempted from the decree he did not cease to be one of the parties whose remedy in the matter of execution lay in the execution department. His suit, therefore, which was brought in the same Court as was seized of the execution was virtually an application under Section 47 of the Civil Procedure Code. An appeal lay from the order of the Court in Chuttan's application or suit and the decision of the District Judge was quite within his jurisdiction. In this view it is really immaterial whether the order which appointed Kalimuddin the receiver of the property was on the original side or in the execution department. In the eye of the law the whole matter was before the Court in the execution department and the order must be treated as having been passed in the execution department. In this view the remarks of the learned Judge of this Court that a separate suit will be necessary to recover the value of the goods from Kalimuddin lose their force.
9. We accordingly allow the appeal and modify the decree passed by the learned Judge of this Court and uphold the order passed by the Munsif against Kalimuddin but set it aside so far as it affected Chuttan.
10. Having regard to the special circumstances of the case we direct that the parties should bear their own costs.