1. The appellant is defendant 11 in the suit. The respondent is the plaintiff (decree-holder auction-purchaser). The plaintiff had brought the suit on a mortgage. Defendant 11 was impleaded as puisne mortgagee. A. mortgage decree was passed. The property was purchased by the decree-holder and delivered over to him. Defendant 11 put in an application saying that part of the property marked A. should not be delivered possession as he had certain rights in it. He was asked to define his rights properly by way of filing an affidavit, and he did so stating; that he claimed both an easement right of way through portion A and also right, in the portion Ex. A as cosharer with the mortgagors of the property. His application was put in both under Section 47 and Order 21, Rule 100, Civil P.C. The application was dismissed by both the Courts below. The present second appeal has been filed against these decisions.
2. A preliminary point was taken that the petition was one under Order 21, Rule 100,, and not under Section 47 and so no first or second appeal lay. The appellant was a party to the suit and was bound by the decree and even a party who has been exonerated is a party to the suit for purposes of Section 47: Sivasamba Iyer v. Kuppan Samban (1915) 32 IC 769, Appia Rukmani Ammal v. Narasimha Iyer AIR 1921 Mad 612 and Govindarajulu v. Chinnathambi, : AIR1928Mad1270 . The question whether a party bound by a decree can seek in execution to have the decree set aside is a different one from whether, if he does make such an application, it is to be under Order 21, Rule 100 or under Section 47. I consider that the only section under which it can lie, if it lies at all, is Section 47, but I agree with lower Courts that the petition will not lie at all. Three cases have been quoted to me, Sivasamba Iyer v. Kuppan Samban (1915) 32 IC 769, Appia Rukmani Animal v. Narasimha Iyer AIR 1921 Mad 612 and : AIR1928Mad1270 , where parties to a decree had been allowed to put forward paramount title in execution proceedings, but in all those cases the parties had been exonerated and they were therefore not bound by the decree. In this case defendant 11 was impleaded as a puisne mortgagee. He remained ex parte. Decree was passed against him and he allowed the sale to take place. He now comes forward to object to the execution on the ground of a paramount title. The question is whether he can be permitted to do so. No authority has been quoted to show that such a thing can be permitted. The published report in : AIR1928Mad1270 does not disclose that the objecting defendant had been exonerated, but upon calling for the records of the case I find that it is so. No doubt the paramount title set up by defendant 11 is not an issue in the suit and the Court was not bound to adjudicate upon it in the suit if set up, but a decree has been passed against him in his capacity as puisne mortgagee. Several cases are quoted for the respondent which show that a party bound by a decree cannot be allowed to attack the decree in execution proceedings on the ground of paramount title: Sahu Nand Kishore V. Dhanpat Rai : AIR1932All49 , Khetrapal Singh Roy v. Shyama Prosad Barman (1905) 32 Cal 265 and Ram Charan Sahu v. Salik Ram Sahu : AIR1930All628 . In the last case the learned Judges say at p. 221 (of 52 All):
It is clear to us that Section 47, Civil P. C, has no application to the circumstances of the case before us. The question which arises between the parties to the suit does not relate to the execution, discharge or satisfaction of the decree, but is one which, if decided in favour of the plaintiff-appellant, strikes at the very root of the decree which the respondent is seeking to execute.
3. This is exactly the case here. AS regards an exonerated defendant who is not bound by the decree it is perfectly clear that he can, if his interests are affected by executing the decree against those who are bound by it, ask the Court to hold that the decree shall not be executed against his interests; for a defendant bound by the decree to do so is to attack the decree itself. This is not a case where the properties sold are in excess of what the decree orders to be sold. Admittedly the properties which have been sold are the properties which have been ordered by the decree to be sold and the appellant's attempt is to set aside that decree by which he is bound by setting up his paramount title in execution proceedings. In my opinion the Courts below are right in holding that he cannot do so. In the result this appeal fails and is dismissed with costs.