1. This is an appeal against an order of remand in a matter arising out of a claim in execution of a personal decree passed in a mortgage suit. The appellant is a mortgage decree-holder; the respondent is the eighth defendant impleaded in the mortgage suit as a subsequent purchaser of one of the items mortgaged. After the sale of the hypotheca had not realised the full amount of the mortgage decree, an application was made for a personal decree against the mortgagors and to this application the present respondent (eighth defendant) was not made a party. When the decree-holder came to attach part of the personal property of the mortgagors, there was a claim preferred by the present respondent on the ground; that the property attached was his property by virtue of a sale executed after the passing of the personal decree. Now, the claim preferred by the respondent was drafted as a claim by a stranger to the decree under Order 21, Rule 58 and it was investigated on that basis and though the learned District Munsif does go to some extent into the validity of the title claimed by the respondent, he expressly says that the only point for determination is, who was in possession of the attached land at the time of the attachment. He found that the respondent herein was not in possession and he dismissed the petition. Thereupon, the respondent instead of filing a suit to contest the correctness of this order, discovered that the order was one under Section 47 of the Civil Procedure Code he having been a party to the suit; and he filed an appeal. The learned Subordinate Judge hearing the appeal agreed with the contention that the matter was one falling under Section 47 and remanded the suit for a fresh hearing on the ground that the lower Court erred in disposing of the claim summarily.
2. It seems to me quite clear that the learned Subordinate Judge is right in holding that Section 47 covers the dispute between the parties. It is contended on the strength of certain observations in Palaniappa Chettiar v. Narayanan Chettiar : AIR1936Mad34 that the proceeding for obtaining, a personal decree is a separate proceeding from the trial of the suit and that the decree is a distinct decree and that therefore any person who is not a party to the personal decree proceedings but claims property attached under the personal decree is a stranger claimant to whose claim Order 21, Rule 58 will apply. This contention seems to overlook the wording of Section 47 with reference to which the governing factor is not whether the disputants were parties to the decree, but whether the disputants were parties to the suit in which the decree was passed. There can, I think, be no question that the personal decree arising out of a mortgage suit is a decree passed in the mortgage suit; and though the respondent was not given notice of the application for a personal decree, he was a party to the suit in which the decree was passed and the question is one relating to the execution of that decree. Section 47 therefore governs the investigation of the claim.
3. Now, the learned Subordinate Judge ordered a remand on the ground that the trial Court was wrong in disposing of the claim summarily. It seems to me that this statement does notice that was available and has really gone into the question of the title of the claimant. It seems to me probable that the evidence was recorded as fully as was necessary. But undoubtedly the learned District Munsif has considered himself bound only to decide the question of possession. It follows therefore that the remand for an enquiry under Section 47 into the claim of the respondent was necessary. But it seems to me that the learned Subordinate Judge was quite wrong in ordering costs up to the date of his order to abide by the result. The respondent himself was entirely to blame for the way in which the matter proceeded in the trial Court and it was owing to his own error that the appeal and the remand became necessary. He took the position of a stranger claimant and asked the Court to investigate his claim under Order 21, Rule 58 which was done without any question as to the propriety of the provision of law under which investigation was sought Then when an adverse decision was-given, respondent took advantage of his own error in order to claim a right of appeal and get that decision set aside. The result is that all the time and money spent both in the original enquiry and the lower appellate Court have been wasted owing to the error of the respondent.
4. The proper order is therefore that the respondent here (eighth defendant) do pay all the costs of the appellant up to and including the stage of the order of remand by the lower appellate Court. In other respects, the appeal is dismissed and I think it proper that the appellant should pay the respondent's costs in second appeal since she has failed on the substantial grounds.