Sidney Wadsworth, Officiating C.J.
1. The appellant here was the 20th defendant in a partition suit and is the daughter of the respondent (21st defendant in the trial Court). By 'respondent' we refer to the original respondent who is now dead and is represented by his legal representatives, the second and third respondents. The 2oth defendant was the wife of the third defendant, one of the coparceners. She was in the suit claiming certain items of property as her own and her father the respondent, was claiming certain other items of property as his own. The trial Court disallowed the claims of both the appellant and the respondent. They joined together in appealing to this Court against that decision. The appeal was Appeal No. 101 of 1937. In their memorandum of appeal there is an assertion that items 10 and 11 of Schedule C, with which we are now concerned, were purchased with the stridhanam funds of the present appellant. These two items are usufructuary mortgage rights and it is common ground that the lands covered by these usufructuary mortgages were being managed by the respondent for the appellant. It is also common ground now, though the fact was not revealed during the proceedings in the partition suit and the appeal therefrom, that the present respondent purchased the equity of redemption in respect of these two items from the owner, a third party. It is alleged that the mortgage covering these two items was redeemed by the payment of the amount due to the husband of the present appellant the receipt being Ex. P-6 dated the 20th March, 1935. That allegation is denied by the appellant and the appellant alleges that the purchase of the equity, of redemption was made on her behalf with her money by her father, the respondent. These allegations regarding the ownership of the equity of redemption and the discharge of the mortgage were not placed before the Court either at the trial or in the appeal in the partition suit.
2. When the. matter was pending in appeal before this Court, there was a com-promise between the present appellant and the members of her husband's family The respondent was not a party to that compromise. The result of the compromise was a decree declaring that the appellant was entitled to items 10 and 11 of schedule C and also to other items with which we are not now concerned. There is nothing in this decree to indicate that the appellant was not in possession of the items decreed to her or that she was entitled under the decree to get possession from anybody else. The respondent prosecuted his own appeal after this compromise and he failed.
3. After the termination of the proceedings in appeal, there seems to have been disputes between the appellant and the respondent. The respondent had filed a suit on behalf of the appellant claiming rent for these lands from the tenant and got a decree, and in a second suit for possession he had been appointed receiver While he was holding possession of these lands as receiver, the appellant filed an execution petition in which she claimed possession of the lands by virtue of the compromise decree in the partition suit. She obtained permission frorn the Court which appointed the receiver to execute her decree against the receiver, and of this application for permission the respondent certainly had notice. He had, however; no notice of the main execution petition, and the appellant without opposition succeeded in getting delivery of possession. Thereupon the respondent filed an application for re-delivery and it was in the proceedings for re-delivery that all the facts regarding the purchase of the equity of redemption and the allegation of the discharge of the usufructuary mortgage and the further allegation that the purchase was benami for the appellant, were for the first time brought to the notice of the Court.
4. The executing Court, while conceding that the compromise decree in execution of which possession had been delivered did not provide for delivery of possession at all, somehow came to the conclusion that by reason of the averment in the memorandum of appeal regarding the purchase of the items with the stridhanam money of the present appellant, this decree which declared the right of the appellant to items 10 and 11 of schedule C which were usufructuary mortgages, somehow or other became transmuted into a decree recognising the-appellant's full title in the property including her right as holder of the equity of redemption. Having arrived at this startling conclusion, the learned trial Judge came to a decision on such materials as were available regarding the real ownership of these lands and on the strength of that decision dismissed the petition for re-delivery.
5. The matter was taken up in appeal by the present respondent in Appeal Against Order No. 283 of 1944, which was heard by Chandrasekhara Aiyar, J. The learned Judge went into the preliminary objection as to the maintainability of the appeal. The objection was that the appellant and the respondent were supporting each other as co-defendants in the partition suit, each of them claiming in fact a decree against the family, and there was no conflict of interest between them right up to the termination of the appeal; it was therefore contended on the strength of the decision in Bapanna Garu v. Jagga Rao Garu : AIR1943Mad407 , applying the Full Bench decision in Annamalai v. Ramaswami : AIR1941Mad161 that there was no matter arising between the parties to the suit in which the decree was passed relating to the execution, discharge or satisfaction of the decree. Chandrasekhara Aiyar, J., held that there is no rule that the contest or conflict should have been in existence from the very beginning, and if it arises in any stage of the suit and relates to the execution of the decree and a Court is called upon to decide it as between the persons who are parties, to the suit, Section 47 comes into play as was held in Vedaviasa Aiyar v. The Madura Hindu Labha Nidhi, Ltd. : AIR1924Mad365 and the learned Judge allowed the appeal and remanded the petition for a proper consideration of all the evidence available regarding the transaction between the parties.
6. The passage in Vedaviasa Aiyar v. The Madura Hindu Labha Nidhi Ltd. which deals with this question runs as follows:
In the case for instance of a partition suit the judgment-debtors may very well find their interests opposed, when delivery is attempted, although up to the final decree they had no cause for complaint against each other and similarly in administrative or partnership suits. We can see no reason for acceding to the suggestion that we should limit the scope of Section 47 in the way suggested, when to do so would exclude from its purview the decision of many of the questions, which must inevitably arise only after the decree and when the result would be to frustrate the object of the section recognised by the Privy Council in Prosunno Kumar Sanyal v. Das Sanyal , the cheap and speedy settlement of all disputes' at the stage of execution.
7. The question which the learned Judges had to decide in that case was one relating to the order in which items of property belonging to the various defendants in a mortgage suit should be sold, the dispute between them being put forward for the first time in the course of execution. This case was considered in the referring judgment in Annamalai v. Ramaswami : AIR1941Mad161 , the referring Judges say:
In Vedaviasa Ayvar v. The Madura Hindu Labha Mdhi, Ltd. : AIR1924Mad365 the question arose between two defendants in a mortgage suit as to whose property should be sold first. There was a conflict between the two defendants inter se in the suit itself and this was held to raise a question under Section 47, Civil Procedure Code' and a similar explanation of this case is found at the top of page 444 in the same judgment in a quotation from a decision of Madhavan Nair, J. It is no doubt true that the decision in Vedaviasa Aiyar v. The Madura Hindu Labha Midhi, Ltd. : AIR1924Mad365 does not in terms proceed on the basis that the conflict between the defendants interested in various items was a conflict in the suit; but it might well have been in the minds of the learned Judges that when there is a mortgage right claimed against various items in the enjoyment of various defendants, there is from this very nature of the claim a contest between the co-defendants which will only come to a head after the right of the mortgagee has been established; and that may be considered a ground for differentiating such cases from those in which there is no shadow of conflict between co-defendants in the suit itself.
8. A Bench consisting of the learned Chief Justice and Lakshmana Rao, J., had in a very recent case--Bapanna Garu v. Jagga Rao Garu : AIR1943Mad407 to deal with the case of a dispute between two co-decree-holders in which the judgment-debtor had no concern. That was a dispute as to which of the two decree-holders was entitled to money in the hands of a receiver. The decision in Vedaviasa Aiyar v. The Madura Hindu Labha Nidhi, Ltd. : AIR1924Mad365 does not appear to have been quoted before the learned Judges, but a rather similar decision--Mangayya v. Sriramulu : AIR1924Mad365 was cited and the learned Judges criticised the view taken in that case that the expression ' between parties to suit ' in Section 47 does not necessarily mean between parties who are plaintiff and defendant respectively in the suit; and they observed that this decision cannot be followed, the question now under discussion being settled by the Full Bench which decided Annamalai v. Ramaswami It seems to us that we are bound by this decision which interprets the Full Bench as having settled the question whether it is necessary that there should have been a conflict in the suit between the parties in order that the decision of the question arising in execution between them could come under Section 47 of the Code of Civil Procedure.
9. On the facts of the present case it is manifest that there was no conflict whatever either in the suit or in the appeal therefrom between the present appellant and the respondent. They were sailing together and supporting each other. Nor was there any decree passed in favour of the present appellant against the respondent. What she got was a decree against her husband's family recognising her right to the usufructuary mortgage interest in the items with which we are now concerned. No doubt the respondent was a party to that suit and is bound by that decree, but he was not a party opposed to the present appellant; he was supporting her in her claim. We are therefore unable to agree with our learned brother that this is a case falling under Section 47 of the Code of Civil Procedure and we consider that the appeal was not maintainable.
10. We are however asked by Mr. Ramaswami Ayyangar for the respondent to exercise our powers under Section 115 of the Code of Civil Procedure in order to prevent the present appellant from stealing a march in future litigation by resting on the position resulting from an order which the executing Court had no jurisdiction to make. No doubt this Court is ordinarily reluctant to use its powers under Section 115 of the Code of Civil Procedure when there is a simple remedy by way of suit, as in most cases of claim proceedings; but we consider that the powers of the executing Court have been clearly abused in this case and we are also of the opinion that the executing Court, having itself conceded that there was no decree for the delivery of the property, should straightaway have ordered re-delivery and left the parties to fight out in a proper proceeding the question of their rights in the land. The decree in favour of the appellant is certainly not one which recognises anything more than her right to retain the usufructuary mortgage interest described as items 10 and 11 in schedule C to the plaint. The equity of redemption in that mortgage was never in suit, nor was there anything in the decree to justify the conclusion that the present appellant was found entitled to the equity of redemption as against the respondent. In our opinion the executing, Court had no juris diction to order delivery of possession at all, and, having wrongly delivered possession, it was its plain duty on an application for re-delivery to give back the land to the person wrongfully dispossessed and leave the parties to agitate their rights in a proper proceeding.
11. We therefore set aside the order passed by Chandrasekhara Aiyar, J., remanding the case for further enquiry and in revision we direct the executing Court to re-deliver the land to the respondent from whom it was taken and we refer the parties to a separate suit to decide the title in the land.
12. As to costs we think it equitable to allow the respondent his costs in the lower Court and direct each party to bear his or her costs in this Court.