C.B. Bhargava, J.
1. This is an appeal by the decree-holders against the decision of the learned District Judge, Bharatpur dated 15th December, 1953 affirming the order dated 20th July, 1953 passed by the learned Civil Judge, Dholpur.
2. It appears that Dhaniram, Sital Prasad and Ayodhya Prasad ancestors of the appellants obtained a decres on 25th February, 1924 for a sum of Rs. 3039/11/3 against one Talib Hussain in whose place the names of the present respondents have been substituted as his legal representatives. In execution of the decree some properties were auctioned and out of the sale proceeds the decree holders were paid Rs. 9041/4/3. The decree was declared satisfied and the execution proceedings were struck off. On 27th January, 1953 respondent No. 1 made an application before the executing court that a sum of Rs. 1665/86 in excess of the amount due under the decree had been wrongly paid to the decree-holders which may be refunded to him. The decree-holders raised objections against this application but the learned Civil Judge overruled those objections and ordered that Rs. 1309/-/6 be refunded to the judgment-debtor which has been paid in excess. On appeal the learned District Judge, Bharatpur, affirmed the said order and hence this second appeal.
3. It has been contended in this Court that
(i) as the decree had been fully satisfied and the execution case struck off the executing court had become functus officio and had no jurisdiction to entertain the judgment-debtors' application which did not fall under Section 47 C. P. C.
(ii) the judgment-debtor was estopped from raising this question on the principle of constructive res judicata as he had failed to raise it at an earlier stage of the execution proceedings.
(iii) no proper enquiry was made by the executing court to find out as to what amount had been paid in excess of the decree.
4. Mr. P. C. Bhandari for the respondent argues that as the question relates to the discharge and satisfaction of the decree and has arisen between the representatives of the parties it squarely falls within Section 47 C. P. C. He further argues that the rule of constructive res judicata even though it may be applicable to execution proceedings does not estop the judgment-debtor from raising the question which is involved in this appeal.
As regards the amount paid in excess his argument is that the court had taken a report from the office in this regard and the decree-holders had an opportunity to raise objections on that report but (hey did not do so and it was also not raised before the learned District Judge. Mr. Jain for the appellants has referred to the following cases Fakaru-ddin Mohomed Ahsan v. Official Trustee of Bengal, ILR 10 Cal 538, Kartar Singh v. Zorawar Singh, AIR 1929 Lah 121, Dwijendra Krishna Dutt v. Kedar Nath Poddar. AIR 1929 Cal 670, Munu-swami Pillai v Mahdihussain Khan, AIR 1926 Mad 516, Kishore Mohan v. Brahma Niranjan, AIR 1938 Cal 554. On the other hand Mr. Bhandari relies upon Partabsingh v. Beni Ram, ILR 2 All 61 (FB), Imdad Ali v. Jagam Lal, ILR 17 All 418, Madho Lal v. Duli Chand, AIR 1933 All 429, Sm. Prafullanalini Dassi v. Mohini Mohan, AIR 1942 Cal 451, Irulayee Ammal v. Murugiah, AIR 1950 Mad 640, Julien Marret v. Mahomed Khaleel Shirazi and Sons, AIR 1930 PC 86 and Merla Ramanna v. Nillaparaju, (S) AIR 1956 SC 87.
5. It is therefore, necessary to consider these cases. In Fakaruddin Mahomed's case, ILR 10 Cal 538, it was held that
'the words 'the court executing the decree' used in Section 244 of the Code of Civil Procedure must be interpreted to mean the court executing the decree at the time when the application is made and they do not include the court which has executed the decree and has therefore become functus officio.'
in Kartar Singh's case, AIR 1929 Lah 121 it was held that:
'When a particular decree is consigned to record-room after it is fully satisfied an application by a judgment-debtor for correction of description of property sold in execution of the decree and restitution of property from auction-Purchaser sold in excess is not maintainable as the executing court is functus officio. The application is not one relating to execution, discharge or satisfaction of the decree.'
In Dwijendra Krishna Dutt's case. AIR 1929 Cal 670, it was held that:
'Where an order of dismissal of execution case is made on account of mutual mistake, the order by consent may be reopened. There is no authority that any order or proceeding can be reopened on the ground of mistake of fact of one of the parties to it.'
However, in this case the applicability of Sec, 47 C. P, C. was not discussed. In Munuswami Pillai's case, AIR 1926 Mad 516 again the question whether Section 47 applies or not was not considered. There the application was under Section 152 C. P C. Kishori Mohan's case, AIR 1938 Cal 554 is also distinguishable as there it was held with reference to the transferee court at B that
'it could not grant restitution because as soon as it executed the decree its Purpose was finished and it no longer remained an executing court; so Section 47 was of no use.'
In Partab Singh's case, ILR 2 All 61 (FB) it was held that
'moneys realised as due under a decree if unduly realised are recoverable by application to theCourt executing the decree and not by separatasuit.'
In Imdad Ali's case, ILR 17 All 418, it was heldthat
'Section 244 of the Code of Civil Procedure applies as well to a dispute arising between the parties contemplated by that section in relating to the execution of a decree after it has been executed, as it would to a dispute between such parties relating to the execution of a decree before it had been executed.' In Madho Lal'. case, AIR 1933 All 429 it was held that
'Section 47 is applicable to execution proceedings as much after an order has been passed declaring the decree satisfied as before an order has been made to that effect. Where a decree has been held to have been discharged and one of the parties came to the Court on the ground that the order has been wrongly passed and should be reviewed or reconsidered, the case would fall under Section 47 and the order would be appealable. So where a judgment-debtor applies to the Court after the satisfaction of the decree against him staling that sale of his property was illegal and the decree holder has benefited by obtaining more than his decretal amount and prays for a refund of the excess the order passed on such an application is appealable.'
In Sm. Prafullanalini Dassi's case, AIR 1942 Cal 45l the earlier case AIR 1929 Cal 670, was distinguished and it was held:-
'Where the pleader of the decree-holder who was misled by the agent of one of the judgment-debtors gave credit to the judgment-debtors to the extent of Rs. 1000 in excess of that to which they were entitled; this mistake was continued in the entry made in the execution column of the suit register; the decree-holder before filing execution application applied to the office for information as to the extent to which the decree was satisfied; the information given to him was based on the erroneous entries in the suit register; in due course in proceedings in execution certain Payments were made by the judgment-debtors which resulted in the execution case being dismissed on full satisfaction; and on mistake being discovered the decree-holder applied to reopen the execution Proceedings; the judgment-debtors could not be allowed to take advantage of the mistake and the Court had power to reopen the execution proceedings and to continue them'.
In Julien Marret's case, AIR 1930 PC 86 where a suit was filed for repayment of money paid to a decree-holder and for rectification of the security bond, it was held that
'the question in the case arises between the parties to the suit and related to the satisfaction of the decree and it precluded any cause of action by way of a suit.'
6. I must confess that the views of the Courts are conflicting on this question. On one side the view is that the Court after a decree is fully satisfied and the execution case is consigned to records, becomes functus officio and is not a Court executing the decree within the meaning of Section 47 of the Code of Civil Procedure. On the other hand the view is that even though the decree may have beensatisfied still the executing court is the only Court which is competent to decide the question whether any amount in excess of the decree has been paid.
On the language of section itself and on the ground that the Court by whose orders a wronghas been done to a Party should itself reconsiderand rectify the mistake and place the party in the same position which he would have occupied but for the Wrong order of the Court instead of driving Mm to a long, expensive and inconvenient remedy, I consider with due respect that the latter view is preferable. When a sale in execution of a decree was impugned on the ground that it was not warranted by the terms thereof, the Supreme Court in Merit Ramanna's case, (S) AIR 1956 SC 87 hold that as the question arose between the Parties to the decree it can only be decided by an application under Section 47 and not in a separate suit.
The following cases were quoted with approval by the Supreme Court: AIR 1930 PC 86. Biru Mahata v. Shyam Charan Khawas, ILR 22 Cal 483, Abdul Karim v. Islamunnissa Bibi, AIR 1916 All 104 and Lakshminarayan v. Laduram, AIR 1932 Bom 96. In Abdul Karim's case it was held that:
'An improper seizure of a judgment-debtor's property by the decree-holder in excess of his rights under the decree is a question arising bet-Ween the parties to the suit within the meaning of Section 47 of the C. P. C. and if a judgment-debtor is dispossessed of land if is outside the decree, his only remedy is an application, for restoration of possession under Section 47, and if he does not avail of this remedy he loses his land, inasmuch as he cannot bring a separate suit.'
Whether the property taken is land or money there is no difference in principle and there is no reason why Section 47 should not apply where the money hay been realised in excess of the amount due under the decree. In Lakshminarayan Hira-lal's case, AIR 1932 Bom 96 a decree was passed for a sura of Rs. 3,626 and the said amount was made a charge on certain cotton bales belonging to the judgment-debtor, but in possession of the decree-holder. The value of the bales was not ascertained at that time. During execution proceedings, the decree-holder presented an application to the Court whereby he gave a credit of Rs. 143 to the judgment-debtor as the sum realised by the sale of those cotton bales in his possession. The judgment-debtor objected to this price and an issue Was framed regarding it. Then the value of the bales was found to be Rs. 5,512: But in the interim period the decree holder had recovered from the judgment-debtor various sums amounting to Rs. 3,152. Hence the judgment-debtor applied for the restitution of his overpayments to the decree-holder and it was held that:
'Under these circumstances restitution could by granted to the judgment-debtor by liberally applying Section 144. The whole execution proceedings had proceeded on the basis that the price of the bales was to form part of the payment towards decree and the decree should be deemed to have been varied, that Section 47 strictly applies to the case and that a case of overpayment like this and satisfaction of a decree was a matter to be decided by in application in execution and not by a separate suit'
7. Thus in principle the view that an application for refund of the amount realised in excess of the amount due under the decree falls within the scope of Section 47 C. P. C. as it arises between the parties to the suit or their representatives and relates to the satisfaction and discharge of the decree, also finds support from the aforesaid decision of the Supreme Court. The first contention has, therefore, no force and the application was rightly entertained under Section 47 C. P. C. by the executing Court.
8. As regards the next contention there is no doubt that the principle of res judicata and that of constructive res judicata are applicable to execution proceedings. See Mohanlal Goenka v. Benjoy Kishna Mukherjee, AIR 1953 SC 65, and Amar Singh v. Gulab Chand, ILR (1960) 10 Raj 835 : (AIR 1960 Raj 280). But the mere fact that the judgment debtor in this case did not object that the amount for which the execution was taken out was in excess of the decree will not I debar him from raising that question at a sub-sequent stage. See Ulaganatha Mudaliar v. Ala-gappa Mudaliar, AIR 1929 Mad 903, where it was held that:
'the mere fact that a judgment-debtor does not in a previous execution proceeding object that the amount for which the execution is taken out is in excess of the decree itself, does not bar the judgment-debtor from raising that objection in subsequent execution proceedings. To hold otherwise implies that the decree is itself superseded by orders in execution.'
This case was followed in the later decisions of that court in Azagappa Chetti v. Ramanath Chet-tiar, AIR 1933 Mad 466, Alluri Bapanna v. Inu-ganti Vengayya, AIR 1937 Mad 511 and Kalyan-singh v. Jagan Prasad, AIR 1915 All 344 (2). In my opinion the judgment-debtor is not estopped on the principle of constructive res judicata from raising the question that the decree-holders have realised more than what was due under the decree.
9. The executing court has held that the decree-holders in this case have been paid Rs. 1309/-/6 more than what was due under the decree. There is a report of the Reader which shows that the decree-holders have realised Rs. 1309/-/6 more than what was due, The learned Civil Judge has discussed this question in detail and it has not been pointed out to me that the view taken by the court below is in any way wrong. The decree-holders had ample opportunity before the executing court to raise any objections if they so liked.
10. I therefore, see no force in this appealwhich is hereby dismissed. In the circumstancesof the case I leave the parties to bear their owncosts of this appeal.