1. This is a judgment-debtor's appeal against an order of District Judge J. S Bedi dismissing the appeal of the judgment-debtor against an order made by the executing Court on the ground that the appeal was not competent,
2. On the 13th or March 1950 Shatrughan who was a mahant of Dera Baba Ram Das got a decree for possession of a house against Anant Parkash. On the 7th of January 1953 Dharman Nand, the present respondent, took out execution against Anant Parkash and he claimed to be the de facto mahant of the place and therefore a legal representative entitled to sue out execution. On the 7th of March 1953 Anant Parkash filed objections claiming to be the mahant under a will alleged to have been executed by the deceased decree-holder.
His objections were dismissed on the 20th of January 1955 and Dharman Nand, the present respondent, xvas held to be the de facto, Mahant and legal representative of the deceased decree-holder and therefore entitled to take out execution. During the pendency of these proceedings in the executing Court Anant Parkash made an application on the 17th of February 1954 claiming that he had been appointed a mahant of the dera by the Bhek but this plea was not allowed to be raised at that stage and was dismissed on the 6th of April 1954.
An appeal against this order was also dismissed on the 2nd of August 1954.
3. An appeal was taken to the District Judge against the order of the 20th January 1955 but it was dismissed on the 13th of August 1955 and an appeal against this order was brought to this Court but was dismissed in limine on the 13th of September 1955.
4. When the proceedings were revived in the executing Court Anant Parkash filed objections out of which the present appeal has arisen claiming that he was appointed a mahant on the 17th of February 1954. On the pleas which were raised in that case two' issues were framed and it was hold that the plea as to the appointment of Anant Parkash as a mahant by the Bhek was not res judicata and the question as to whether Anant Parkash was or was not a legal representative could not be raised in execution proceedings because of Section 47(3) of the Civil Procedure Code.
5. Against this order Anant Parkash Went up in appeal to the District Judge who has held that the question whether Anant Parkash is or is not a legal representative cannot be decided under Section 47(3) and the learned Judge relied on two Judgments, Mt. Sunder v. Sita Rani, AIR 1941 Lah 342 (A) and Venubai v. Damodar Sondur, mi 57 Bom 641 : (AIR 1933 Bom 396) (B). In the former case a claim was made by the respondent to be appointed the legal representative of a party in execution on the basis of a will which was opposed by the relatives of the deceased, and It was held that that matter did not fall under Section 47(3) and therefore no appeal lay and the proper procedure for him was to get the matter decided in a civil suit.
In the Bombay case it was held that section 47(3) of the Civil Procedure Code is ancillary to Sub-section (1) and applies to a case where the question arises between the parties to the suit or their representatives and does not apply when the Question is between the rival representatives of one party, the other party having throughout disclaimed any interest in the question, and therefore no appeal lies. Both these cases apply to different sets of circumstances.
In the present case both parties are claiming to be the legal representatives of the deceased decree-holder and in my opinion Section 47(3), Civil P. C., is meant for cases such as these. The learned District Judge has come to an erroneous conclusion in this case and I would therefore allow this appeal, set aside the order of the Courts below and remand the case for proceeding in accordance with law and the remarks made above. The costs will abide the event.
6. The parties are directed to appear in the executing Court on the 19th of November, 1956.