1. This is a decree-holder's appeal and arises in the following circumstances: The appellant was a mortgagee under a deed, executed by one Noorul Hasan and instituted suit-No. 57 of 1923 for the enforcement of his mortgage by foreclosure, and obtained a preliminary decree ex parte. Subsequently the ex parte decree was set aside and after contest another preliminary decree for foreclosure was passed on 30th September 1924. During the pendency of the foreclosure suit Noorul Hasan, executed a deed of usufructuary mortgage in favour of the respondent, Parmeshwari Din, on 15th February 1924. Subsequently, on 25th. February 1928, Parmeshwari Din purchased Noorul Hasan's equity of redemption in execution of a simple money decree. The appellant made his application for final decree sometime after 25th February 1928, mentioning Parmeshwari Din, as one of the opposite party in the heading of his application. On 28th July 1928, when the application was heard, he discharged Parmeshwari Din, and the Court recorded an order to that effect. A final decree for foreclosure was passed on the same day. The decree-holder obtained delivery of possession against Noorul Hasan on 29th March 1929, in execution of hi? decree.
2. In the mutation proceedings which followed, disputes arose between the appellant and Parmeshwari Din, who had obtained entry of his name in the Record of Rights. Apparently the decree-holder was unsuccessful in having the name of Parmeshwari Din expunged. Thereupon he made a second application for execution of decree on 21st August 1930, praying that delivery of possession be made as against Parmeshwari Din, who is bound by the final decree passed against Noorul Hasan, he being a transferee pendente lite. Parmeshwari Din objected to any proceedings in execution being taken against him. His principal pleas were that, as he was no party to the foreclosure decree, no execution could be taken out against him and that the decree having been once executed, a second execution was not permissible. It was also contended that an application of the kind made by the appellant was not maintainable and that his only remedy was to institute a regular suit. This last mentioned plea found favour with the lower Court. Accordingly the appellant's application was dismissed, and he was directed to seek his remedy by a regular suit. The learned advocate for the appellant argued that Parmeshwari Din, having taken a mortgage and having purchased the equity of redemption of Noorul Hasan, during the pendency of the foreclosure suit, was bound by the decree which was eventually passed against his transferor, Noorul Hasan, and that the transfers in his favour cannot affect his rights under the decree to any extent.
3. We are clearly of opinion that this contention is sound. Section 52, T.P. Act, lays down that, during the active prosecution in any Court of a contentious suit in which any right to irremovable-property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. It is not suggested that permission of the Court was obtained for either of the two transfers in favour of Parmeshwari Din. It cannot be doubted that the foreclosure suit was a contentious one. It is equally undeniable that the mortgaged property was directly and specifically in question in the foreclosure suit. It is clear that the transfers taken by Parmeshwari Din cannot in any manner affect the rights of the decree-holder, the appellant before us. One of his rights under the decree in the foreclosure suit was to extinguish Noorul Hasan's right of redemption and to obtain actual possession of the mortgaged property. If Parmeshwari Din's objection as regards the appellant's right to take possession in execution of his decree be allowed to prevail, his (the decree-holder's) rights under the foreclosure decree-would be materially affected. In this view the appellant was entitled to execute his decree not only against Noorul Hasan, but also his transferee pendente lite, Parmeshwari Din. A number of technical objections 'have been raised before us. First, it is contended that Section 47, Civil P.C., does not apply, and consequently the order of the lower Court cannot be the subject of an appeal to this Court. In our opinion this contention has no force. That Parmeshwari Din, is a representative in interest of Noorul Hasan can admit of no doubt. The question arises between the decree-holder on the one side and the representative of the judgment-debtor on the other. The controversy between the parties is clearly one relating to the execution of decrees. In fact, the appellant's application for execution of decree was resisted by the respondent. We think that Section 47, Civil P.C. is fully applicable and that an appeal to this Court is competent.
4. It was argued that the respondent, though a transferee pendente lite, had a right of redemption by virtue of transfers made in his favour, though pendente lite and that he should not have been discharged after being impleaded in the application for a final decree. Reference is made to Order 34, Rule 3, Civil P.C. We think that Order 34, Rule 3, Civil P.C, should not be read independently of other provisions of the law. When read with Section 52, T.P. Act, there can be no doubt that a final decree passed against Noorul Hasan is as effective against his transferee pendente lite as against himself. The transferee could have redeemed even though he was no party. He did not avail himself of the opportunity and the final decree extinguished not only the rights of Noorul Hasan, but also the rights of his transferee pendente lite. It is next argued that the appellant having taken out execution of his decree against Noorul Hasan and having obtained delivery of possession against him, the decree should be deemed to have been completely executed, and no further execution proceedings can take place. The appellant's application is said to be virtually one under Order 21, Rule 97, Civil P.C., that is, an application by a decree-holder who is obstructed in taking possession of the property in respect of which a warrant for delivery of possession has been executed. We do not think this argument is sound. The decree has not been fully and effectively executed. There can be no doubt that the decree-holder could have, in the first instance, applied for execution not only against Noorul Hasan, but also against his transferee pendente lite. Had he done so, there could be no argument against the maintainability of such application so far as Parmeshwari Din was concerned. The position cannot be materially different if an application was made in the first instance only against Noorul Hasan; and when the decree-holder subsequently discovered that the execution taken out against Noorul Hasan was infructuous, he applied for execution of his decree under Order 21, Rule 11, Civil P.C, against the respondent, who should as much be considered to be the judgment-debtor as Noorul Hasan himself.
5. We are clearly of opinion that the execution taken out against Noorul Hasan was not a complete execution of the decree. Reference was made to two Full Bench cases (1) : Bhagwati v. Banwari Lal (1909) 31 All 82 and Gaya Bakhsh Singh v. Rajindra Bahadur Singh AIR 1928 Oudh 199. Both these cases refer to the right of an auction-purchaser to apply for delivery of possession after he was actually delivered possession but was obstructed by a judgment-debtor or his representative. It was held in both those cases that the auction-purchaser's application was one under Section 318, Civil P.C. of 1882, or Order 21, Rule 97, Civil P.C. of 1908. The position of an auction-purchaser is different from that of a decree-holder. The former is not the holder of a decree capable of execution but is merely entitled to delivery of possession under Order 21, Rule 95 on the strength of his sale certificate. The decree-holder on the other hand is entitled to execute his decree, that is, he can secure all the advantages which the decree confers upon him. In this case the decree-holder is entitled to recover possession from the transferee. As we have already pointed out, the appellant's application is an application drawn up under Order 21, Rule 11, Civil P.C, and is not an application under Order 21, Rule 97, Civil P.C. His application for execution is within limitation, and there is no reason why it should be treated as an application under Order 21, Rule 97, Civil P.C. We hold that neither of the two cases referred to above has any application and that the appellant was entitled to maintain a second application for execution against Parmeshwari Din. In the view of the case we have taken, this appeal succeeds. It is accordingly allowed. The order of the lower Court is set aside. It shall deliver possession to the appellant as against the respondent, as prayed for in his application for execution. The appellant shall have his costs in both Courts.