1. This first appeal by the plaintiff arises out of the judgment of the First Additional District Judge, Jabalpur, in Civil Suit No. 13-A of 1954, decided on 13-4-1956.
2. The plaintiff Karimunnisa is the widow of one Tajuddin, who died in 1942. Defendant (respondent) Alfuddin is the brother of Tajuddin. The property in suit consists of a bungalow No. 162 and two plots Nos. 720 and 721, all situate at Jabalpur. It is not disputed that Tajuddin had borrowed Rs. 2500/- from Alfuddin on 25-10-1940. Tajuddin died on 24-1-1942 and Alfuddin sued Karimunnisa as his legal representative for the recovery of the debt. During the course of this suit (Civil Suit No. 3-B of 1942) the properties in dispute were attached before judgment.
The claim was decreed on 22-9-1942 against the assets of the deceased Tajuddin in the hands of Karimunnisa. On 20-11-1943, Alfuddin started execution proceedings to have the attached property sold. The sale was held on 4-9-1944 and was confirmed on 3-11-1944.
3. In the meanwhile, Mst. Imamunmsa, mother of Tajuddin, filed a suit against the parties before us and other heirs of Tajuddin for administration of his estate claiming partition of the residue remaining over after paying the debts. In that suit, Karimunnisa claimed the bungalow as her personal property. That suit (Civil Suit No. 18-A of 1942) was decreed. However, in the appeal, which was decided on 22-8-1945, the bungalow was excluded from partition and was given to Karimunnisa.
4. After the sale of the attached property in the execution proceedings, referred to above, Karimunnisa filed an objection under Section 47 of the Civil Procedure Code on 16-1-1945 for setting aside the sale on the ground that the property did not form the assets of the deceased. It was also urged that notice under Order 21, Rule 66 was not served on her and the receiver, who was in possession of the property under orders of the Court in Civil Suit No. 18-A of 1942, was not noticed. This objection was treated by the executing Court to be under Order 21, Rule 90, and was dismissed as barred by time. An appeal to the District Judge and a second appeal to the High Court were also dismissed. This was on 19-2-1954. Thereafter, possession was delivered to Alfuddin on 1-9-1954.
5. Karimunnisa meanwhile filed the present suit on 26-8-1954 for a declaration that the attached property belonged to her and was not liable to sale in execution of the decree in Civil Suit No. 18-A of 1942. The defendant objected to the suit on the ground that it was barred under Section 47, Civil Procedure Code. He raised several other objections which do not concern us in this appeal. The objection was decided as a preliminary issue in favour of the defendant and the suit was dismissed as not maintainable. It is against this dismissal of the suit that the present appeal has been preferred.
6. The first point that has been urged by Shri R. K. Pandey for Karimunnisa is that it was not open to Alfuddin to urge that the suit was not maintainable, as he had objected to the objection in the execution proceedings being dealt with under Section 47 of the Civil Procedure Code. He relies upon Uttamchand v. Saligram, AIR 1929 Nag 79 and People's Co-operative Bank v. Parvathy Ayyanna Pillai, AIR 1959 Kerala 133, in support of this contention. In the first case, an application under Section 47 was objected to on the ground that a suit should have been filed and the subsequent suit was objected to on the ground that an application under Section 47 was the proper remedy. Under these circumstances, it was held that the latter stand was not permissible. In the second case, the prayer of the defendant, who had taken an assignment from the plaintiff, for transposition as plaintiff was opposed and the suit was dismissed for default after refusing transposition. Later, when that defendant filed a suit on the basis of the transfer to him, a contention was raised that he was concluded by the first suit under Order 9, Rule 9, Civil Procedure Code.
This plea was not allowed to be raised. In both these cases, the contentions sought to be raised in the subsequent proceedings were directly contrary to the stand taken successfully earlier. These cases were, therefore, decided on the principle of estoppel. No such position, however, exists in the present case. The application purported to be under Section 47 of the Civil Procedure Code and all that was stated on behalf of Alfuddin was that as it was only for the purpose of setting aside the sale, it should be treated under Order 21, Rule 90. It was nowhere stated by him that the applicatior did not lie or that a suit alone was the proper remedy.
As would appear from the judgment in second appeal (Ex. D-2) in that case, the position seems to have been accepted by all concerned, including Karimunnisa, that it was an application under Order 21, Rule 90. At any rate, it is clear that the question whether a suit was the appropriate remedy was not raised by anyone and was not adjudicated upon. There is thus no substance in the contention that the defendant cannot plead that the suit is barred under Section 47 of the Code.
7. That brings us to the second question whether in such cases the judgment-debtor must file an application under Section 47 of the Code or whether he can bring a separate suit. Shri R. K. Pandey contends that a separate suit is tenable when the judgment-debtor contends that the attached property does not form assets of the deceased. Reliance was placed on Fatechand v. Mahant Ganeshgir, 27 Nag LR 10 : (AIR 1930 Nag 293), which lays down that a judgment-debtor who claims the property in a separate capacity can file an objection under Order 21, Rule 58, and need not apply under Section 47 of the Civil Procedure Code.
We may observe that a distinction has to be made between two types of cases, viz., those in which the judgment-debtor claims the property in the capacity of a third party, and those in which he himself claims the property. The decision relied upon dealt with the first type of cases, as the judgment-debtor in that case claimed the property as a trustee of a ninth. In such cases, an objection by the math would lie in any case and it was an accident that the judgment-debtor happened to be the trustee.
The second position was considered in several cases and it has been held that the judgment-debtor must file an application under Section 47, if he objects to the attachment. Thus, in Deviprasad v. Waziruddin, 31 Nag LR 217 : (AIR 1935 Nag 30), the judgment-debtor objected that the attached property could not be sold, as it was Inam property, and it was held that the only remedy was an implication under Section 47 and no separate suit lay. In Sobha v. Chhaganbai, 30 Nag LR 135 : (AIR 1934 Nag 82), an objection that the property was exempt from attachment under Section 60 of the Code was held to lie only under Section 47.
Similarly in Mt. Rukhmabai v. Ramachandra, 21 Nag LR 23 : (AIR 1925 Nag 320), an objection that the attached lands were not saleable, as they belonged to the objector against whom the decree was to the extent of assets of the deceased only, was held to lie under Section 47. The wordings of Section 47 are clear on the point. All that is necessary to attract that section is that the person concerned must have been a party to the suit and not that he should be liable under the decree personally.
Here Karimunnisa was a party to the suit,though the decree is confined to the assets of herhusband. An objection that the attached propertydoes not form his assets must, therefore, fall under Section 47. An objection under Order 21, Rule 58, or a suitunder Order 21, Rule 63, is not tenable in suchcases.
8. The view of Wort J. in Lachhmilal v. Firm Sriniwash Ram Kumar, AIR 1939 Pat 354, is relied upon by Shri R. K. Pandey to support his contention. There it is observed that where the objector has two capacities, one as representative of the judgment-debtor and the other his personal capacity, his objection based on personal capacity can be entertained under Order 21, Rule 58. In that, case, the judgment-debtor was not a party to the suit, but was brought on record in execution proceedings. In this connection, the learned Judge observed :
'The appellant was not a judgment-debtor, indeed it would have been an entirely different position had he been so.'
This obviously implies that where the objector was a party to the suit, an objection under Order 21, Rule 58, would not be tenable. This is all that we are concerned with in the present case. Reliance was also placed on Dhan Bibi v. Mrinalini Ghosh, AIR 1945 Cal 449, in which a suit was considered a proper remedy in such cases. Their Lordships made the observation incidentally, as it was prefaced by the remark that the point was not material except for purposes of court-fees.
At any rate, we find that the view that has long been accepted in this Court is consistent with the language of Section 47 and we have no hesitation in holding that a separate suit does not lie in such cases,
9. Reference was also made to Ramanna v. Nallaparaju, (S) AIR 1956 SC 87, where it has been observed that the sale in excess of the terms of the decree is void. In that case, the decree directed sale of the mortgage rights only, but in execution the land itself was sold. It was held that such a sale was void. Even so, it was held that the only course to set it aside was by an application under Section 47 of the Civil Procedure Code. Their Lordships observed :
'It is well settled that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, the question could be agitated, when it arises between parties to the decree, only by an application under Section 47, Civil Procedure Code and not in a separate suit.'
That concludes the matter. Here Karimunnisa claimed that the property was her own and did not form the assets of the deceased. Unless this fact is proved, it would be treated as saleable. In such a case, even if the sale be said to be in excess of the decree, the remedy is not by way of a suit, as the question is one between the parties to the suit.
10. It was also contended by Shri R. K. Pandey that after the sale was confirmed, the execution proceedings terminated and an objection to attachment and sale at that stage on the ground that both were void could only be taken by a separate suit. He relied upon AIR 1959 Kerala 133 (cit. sup.) In that case, the suit was brought by the decree-holder-auction-purchaser for possession against the judgment-debtor after symbolical delivery had been made to him.
It was held that a suit lay, as the symbolical delivery of possession itself furnished a cause of action for the suit. That suit was based on an entirely new cause of action which arose after the execution proceedings were fully concluded. This does not support the proposition that a suit is tenable to attack the sale. Indeed, it would be unreasonable to hold that while the execution is pending, Section 47 excludes a suit by judgment-debtor, but such a suit can be filed by him if he allows the proceedings to terminate.
The decision of the Supreme Court in Ramanna's case, (S) AIR 1956 SC 87 (supra) makes it clear that an application under Section 47 can be filed in such cases within a period of three years from the delivery of possession, as Article 181 of the Limitation Act applies.
11.The last contention of Shri R. K. Pandey is that the suit should have been treated as a continuation of the previous application under Section 47 of the Civil Procedure Code, as the question of title was not decided in the said proceedings. It is true that the suit was not out of time under Article 181, Limitation Act, which applied to the case. However, the difficulty is that the previous objection, which really fell under Section 47, was already dismissed.
In second appeal (Ex. D-2) the points arising for decision were clearly set out. They included the question whether the property belonged to Karimunnisa. The Court held that the objection fell under Order 21, Rule 90, and as the petition was not filed within 30 days of the sale, it had to be rejected. Shri R. K. Pandey points out that in view of the decision in Ramanna's case, (S) AIR 1956 SC 87 (supra) the limitation was three years for deciding the question of title.
That may be so; but the decision of the Court in second appeal stands and binds the parties. The proper remedy of Karimunnisa was to take the matter up to the higher Court to settle the question of title, and in the absence of any such step, it must be held that the dismissal of the application under Section 47 amounted to a decree concluding all the matters in controversy.
12. In view of the above, the decision of the trial Court dismissing the suit on the ground that ft was not maintainable is correct. The appeal is accordingly dismissed with costs.