1. This appeal arises out of execution proceeding under the following circumstances. One Khushal Singh obtained a mortgage from one Chattar Singh and on foot of it sued his widow Mt. Jai Debi. Khushal Singh obtained a decree and put it in execution. Just before the property was sold Mt. Jai Debi died. Before the sale, Khushal Singh also died and the names of his four sons Raghubir Singh, Sher Singh, Rajindar Singh and Karan Singh were substituted in his place as the decree-holders. These decree-holders made an application to the Court stating that on the death of Mt. Jai Debi they themselves had succeeded to the property of the judgment-debtor, viz., the property that had been sold, and that it was not necessary to proceed with the execution any further. The execution proceedings were being carried on before the Collector, the property being ancestral. Before the Collector there appeared two other sets of claimants. One Yograj Jang Bahadur claimed that he was the next reversioner to the estate of Chattar Singh. The appellants before this Court appeared before the Collector and stated that they were the reversioners of Chattar Singh and they ought to be brought on the record The Collector decided that he could not go on with the proceedings without the Civil Court adjudicating as to the title of the several persons to represent the judgment-debtor's estate. Accordingly by order, clawed the 26th of March, 1919, he returned the papers to the Civil Court for determination of the question.
2. While the several cases were pending Yograj Jang Bahadur instituted a suit of his own to obtain a declaration of his title. That suit failed and Yograj Jang Bahadur's appeal to this Court also failed. Thereupon the contest remained between the remaining two parties, viz., the present appellants and the respondents. The respondents admitted that there were five other persons similarly descended as they themselves and that these five persons would be equally entitled to Chattar Singh's property with the decree-holders. Thus there was a contest between the appellants on one side and the respondents and five others on the other. The learned Subordinate Judge decided against the appellants and hence the present appeal.
3. A preliminary objection was taken be the learned Counsel for the respondents to the effect that no appeal lay. We are of opinion that an appeal lies under Section 47 of the Code of Civil Procedure. The argument of the learned Counsel for the respondents was substantially this. If the question of title has been decided under Order 22, Rule 5 of the Code of Civil Procedure there is no appeal. Again if the question was decided under Section 50 of the Code of Civil Procedure there is again no appeal. As regards the application of Section 47 of the Code of Civil Procedure the learned Counsel argued that it was really the business of the decree-holder to bring such people as he thinks fit on the record, and if the decree-holder is not inclined to bring anybody on the record or if he is going to stop the execution altogether it was no business of anybody to jump into the case.
4. There can be no doubt that Order 22, Rule 5, of the Code of Civil Procedure has no application to the present case. The controversy has arisen during the execution of a decree. Ordinarily, therefore, Section 47 would be the only section which would apply to the case. As for the argument that it was only for the decree-holder himself to say who would be brought on the record as the legal representative of the deceased judgment-debtor, it has to be pointed out that the legal representative of the judgment-debtor is not entitled to bring a suit of his own to have any question that arises in the execution, decided. We asked the learned Counsel for the respondents if he was prepared to say that he was not going to proceed with the execution at all. That undertaking the learned Counsel could not give to us. It is common ground that Mt. Jai Debi died before the sale was held. The question whether the sale was a right one or not may have to be tried and the question would be who would be the party who should contest the sale. The appellants say that if they are not allowed to be brought on the record they cannot impeach the validity of the sale.
5. Further it appears to us that it is not the respondents' case that they are the only reversioners to the estate of Chatter Singh. As already stated, they and five others called themselves the reversioners to the estate of Chatter Singh. In the circumstances there is really no merger of the two rights, viz., the right of the decree-holder to bring the property to sale and the rights and liabilities of the judgment-debtor Mt. Jai Debi.
6. We are decidedly of opinion that the case comes under Clause (3) of Section 47 of the Code of Civil Procedure and that an appeal does lie.
7. Coming to the merits of the case, the question is whether the appellants or the respondents and the five others who are said to be similarly descended are the next reversioners to the estate of Mt. Jai Debi. The lower Court having decided against the appellant it would be for them to show that the judgment of the Court below is erroneous.
8. We have been taken through the evidence in great detail by the learned Counsel for the appellants and we are not satisfied that the appellants have been successful in establishing their case.
[The judgment then discussed the evidence and proceeded.]
9. There is some other documentary evidence which was relied upon by the learned Counsel for the appellants, but we do not see that it is in any way relevant or if relevant has any real probative value. It appears that one Bijoy Singh filed a pedigree along with his grounds of appeal in a certain suit. It was argued that Bijoy Singh was really a man descended from the same stock as the respondents, that the pedigree put forward by Bijoy Singh was really a correct one and that, therefore, the pedigree propounded on behalf of the respondents was an incorrect one. At the outset it is to be noted that the pedigree propounded by Bijoy Singh was never considered by the Court and Bijoy Singh's appeal succeeded on a purely technical point. Two documents viz., wazib-ul-arz of an unknown date but probably prepared sometime after 1863 and a written statement dated tha 10th of February 1854 were also relied upon to prove portions of the pedigree of the respondents. We confess we really do not see any particular relevancy of these documents in the case. They do not establish that the pedigree propounded by the respondents is in any way incorrect or false.
10. Coming to the oral evidence, we have heard every bit of it, the statements having been read out to us in extenso. The learned Subordinate Judge has dealt with the oral evidence and it will be sufficient for us to say that we are not prepared to disagree with the estimate of the evidence made by him. We do not propose to take the witnesses one by one.
11. The respondents' case is supported not only by the oral evidence adduced by them but also by the statement of the deceased Mt. Jai Djbi as recorded in her application for succession certificate. On the very first occasion that arose for her to state who were her relations she mentioned the late decree-holder Khushal Singh, Tej Singh and Eat an Singh. Mt. Jai Debi was later on examined in the course of the trial of the suit she had brought for the setting aside of the deed of gift in favour of the appellant Madho Singh. There too she swore that the appellants did not belong to her family.
12. The Court below was satisfied that the oral evidence adduced on behalf of the respondents was much more reliable than in the case of the appellants. As in the case of the appellants we do not propose to discuss the oral evidence adduced by the respondents in detail. Suffice it to say that wa have heard every portion of it and we are not prepared to disagree with the Court below.
13. The result is that the appeal fails and it is hereby dismissed with costs.
14. There is a cross-objection on behalf of the respondents. It appears that the learned Subordinate Judge omitted to say anything about costs of the proceedings before him. There is no reason why the successful respondents should not have their costs in the Court below. We accordingly allow the cross-objection with costs. The costs of appeal will include printing and translation charges.