M. Natesan, J.
1. This second appeal by the defendants arises out of a suit for declaration of the plaintiffs' title to the suit property, a house in Tirumangakm, Madurai District, and for possession of the same from the defendant, a Court auction-purchaser in execution of a simple money decree. The plaintiffs had been parties to the execution proceedings which led to the sale, having been brought on record as legal representatives of the original judgment-debtor, their father. While the trial Court dismissed the suit as barred by res judicata and Section 47, Civil Procedure Code, on appeal this plea was overruled and the suit decreed.
2. The suit property stood in the name of one Lakshmi Ammal by a sale deed, dated 6th September, 1924. The plaintiffs are daughters of this Lakshmiammal and their father is one Guruswami Nadar. This Guruswami Nadar othied the property in favour of Mahalinga Nadar, son-in-law of Gurusami Nadar and husband of the first plaintiff, for Rs. 1,000 on 8th July, 1953. Mahalinga Nadar obtained a money decree against Gurusami Nadar in O.S. No. 118 of 1956 on the file of the District Munsif's Court, Tirumangalam, for moneys due, and in execution of the decree attached the suit property and brought it for sale. Pending the execution proceedings, Gurusami Nadar died and his sons and the present plaintiffs, his daughters, were brought on record as legal representatives of the judgment-debtor in E.A. No. 32 of 1959, dated 6th June, 1959. The plaintiffs, though served with notice remained ex parte. The suit property was duly proclaimed and the present defendant became the purchaser of the property in Court auction-sale held on 12th December, 1960. The sale was duly confirmed on 17th January, 1961. The purchase by the defendant was subject to the othi in favour of Mahalinga Nadar on 8th July, 1953. The defendant, on his purchase, deposited the othi amount in Court under Section 83 of the Transfer of Property Act, impleading Mahalinga Nadar as respondent. On his death, he filed another application O.P. No. 26 of 1961 impleading the 2nd plaintiff, wife of Mahalinga Nadar, and her sons. On their remaining ex parte to the application the defendant filed a suit O.S. No. 11 of 1962 on the file of the District Munsif's Court, Tirumangalam, for redemption of the othi. To this suit, naturally he made the legal representatives of Mahalinga Nadar--his wife and sons--as parties. They remained ex parte and a decree for redemption was passed on 16th February 1962. Pursuant to the decree, the defendant, having deposited the othi amount, applied for delivery of possession of the property in E.P. No. 207 of 1962 and secured possession of the property on 2nd July, 1962.
3. It is after all these the plaintiffs have come forward with the present suit on 26th September, 1962. Their plea is that as heirs of Lakshmi Ammal, the property belonged to them. The defence, on the merits, has been that the property was purchased by Gurusami Nadar benami in the name of his wife. But right through he has been exercising dominion over the same. But the plaintiffs have a judgment in their favour recognising the title of their mother to the property. The 2nd plaintiff herein, asserting the title of the daughters, that is, herself and the 1st plaintiff, to the suit property as heirs of Lakshmi Ammal, instituted the suit O.S. No. 195 of 1957 on the file of the District Munsif's Court, Tirumangalam. She filed the suit for partition and separate possession of a half share for herself in the suit property impleading as defendants to the suit her father, Gurusami Nadar and the mortgagee Mahalinga Nadar as defendants 1 and 2 and her sister and co-sharer as 3rd defendant. She impugned the validity of mortgages executed over the property by her father. The suit included other items and there was another mortgage executed by the father in favour of Mahalinga Nadar over items 2 and 3 in that suit. The alienation by Guruswami Nadar in favour of Mahalinga Nadar were challenged as void as against the daughters, the plaintiffs and 3rd defendant in that suit. Gurusami Nadar was ex parte and Mahalinga Nadar filed a written statement setting up the plea of benami. His defence was adopted by the present first plaintiff. But the defence was overruled and the title of the two daughters to the property as heirs of their mother was upheld. The possession and management of the property by the father which was shown in the case was held to be only on behalf of the present plaintiffs. A preliminary decree for partition of the suit property and allotment of an half share to the present 2nd plaintiff was granted on 12th July, 1958. On appeal therefrom, A.S. No. 108 of 1958 on the file of the Sub-Court, Madurai, preferred by Mahalinga Nadar was dismissed on 29th October, 1960. This decision clearly binds the defendant. As Court auction-purchaser he has acquired only the right, title and interest of the judgment-debtor, Gurusami Nadar in the property and for the purpose of Section 11, Civil Procedure Code, he is clearly a representative of Gurusami Nadar. Equally it may be said that the 1st plaintiff who with her husband, has taken the stand that the property belonged to Guruswami Nadar and was competent to mortgage the property, cannot question the title of the defendant by his purchase of the property as that of Gurusami Nadar. She had submitted to redemption of the othi remaining ex parte in the suit for redemption and possession. The defendant has taken possession of the property pursuant to the redemption decree without any challenge from the first plaintiff.
4. The substantial answer of the defendant to the suit was one of law. He contended that the plaintiffs who had been brought on record in the execution proceedings in O.S. No. 118 of 1956 as legal representatives of the deceased judgment-debtor raised no objection to the attachment and sale of the property as that of the Judgment-debtor The plaintiffs had every opportunity to raise objections, in the course of the execution proceedings, to the suit property being proceeded against for the decree amount as assets of the judgment-debtor in their hands. But they stood by and allowed the property to be attached and sold in Court auction. The executing Court passed an order for sale of the property as the property of the judgment-debtor. The plaintiffs, it is therefore, contended are estopped from setting up a case that the property belonged to them personally and was not answerable for the decree debt-It is pleaded that the suit was barred by res judicata and also by Section 47, Civil Procedure Code. The trial Court accepted these legal defences and dismissed the suit. The learned Subordinate Judge, in his approach to the case, has committed a. serious mistake. He has dealt with the case as if the suit, O.S. No. 118 of 1956, in execution of the decree in which the defendant purchased the property, was a mortgage suit. In that erroneous view, he held that the question of title to the mortgage property could not have been raised in execution proceedings, as the question raised went to the root of the mortgage decree and did not relate to the execution discharge or satisfaction of the decree. In that view, he overruled the plea of res judicata and bar under Section 47, Civil Procedure Code.
5. Before me Mr. Kothandarama Nayanar, for the appellant principally, relied on the plea of res judicata or estoppel by judgment and the bar under Section 47, Civil; Procedure Code. Mr. A. Shanmugavel, learned Counsel for the plaintiffs-respondents, has covered a wide ground in reply questioning the fundamental basis of the appellants' contentions. It is unnecessary to detail them here, as they could be more conveniently dealt with while examining the appellant's case.
6. I shall first frame up the facts of the case in the context of the points now raised before me. The defendant is a Court auction-purchaser in execution of a simple money decree. The decree was against the original judgment-debtor Gurusami Nadar. Execution proceedings were taken out against him. But pending the proceedings, he died. The present plaintiffs were brought on record, in the proceedings even in 1959 and in their presence the suit property which had already been attached was put up for sale and sold. The plaintiffs' title to the property as against Gurusami Nadar had been declared in O.S. No. 195 of 1957 even on 12th July, 1958 and confirmed in appeal in October, 1960. Though the Court sale of the property took place only in December, 1960, the plaintiffs did not move their little finger and question the sale of the suit property as assets' of the deceased judgment-debtor in their hands. They allowed the sale to be confirmed on 17th January, 1961. Neither the legality nor the regularity of the execution procedure leading to the Court sale has been challenged. There is no suggestion that due notices have not been taken to the plaintiff as required by the Civil Procedure Code.
7. As regards execution against legal representatives, the relevant sections of the Code that may be referred to. Pertinent in the context are Sections 50 and 52, which are as follows:
Section 50 (1): Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representatives of the deceased.
(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.
Section 52 (1). Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.
(2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree has been against him personally.
8. Order 21, Rule 22, provides that, where an application for execution is made against the legal representative of a party to the suit, the Court executing the decree shall issue notice to the person against whom execution is applied for, requiring him to show cause, on the date to be fixed, why the decree should not be executed against him. It is unnecessary to refer to the proviso to Order 21, Rule 22 (1) here. There has been no challenge, as pointed out earlier, that due notices have not been issued. Order 21, Rule 64, provides for passing of an order for sale of attached properties. Whenever execution is proceeded against the legal representative of a debtor, whether it is under Section 50 or under Section 52, the execution is against the assets of the deceased in the hands of the representatives. The attachment and sale of the property in the hands of the representatives is as ' assets of the deceased in his hands and that is what has taken place here. The suit property which, it is stated, had been attached during the lifetime of the deceased was sold with the present plaintiffs on record, as property of the deceased. The question is whether it was incumbent on the plaintiffs, before the sale or at any time before confirmation of the sale when they had knowledge of the execution proceedings to put forward their personal title to the property and protest against the property being sold as assets of the deceased in their hands. Then we have Section 47. The main principle of this section is that all questions relating to the execution, discharge or satisfaction of the decree shall be determined in the execution proceedings and not by a separate suit. Section 47 provides cheap and expeditious procedure for trial of such questions, and the Privy Council in Chodry Wahed Ali v. Mst. Jummaee (1873) 2 Beng. L.R. 149, referring to the corresponding provision in the Code of 1861, remarked that the provision was for the beneficial purpose of checking needless litigation. And their Lordships did not desire to limit its operation. The obvious limitation on the scope of Section 47 is that the Court executing the decree cannot go into any question as to the correctness or legality of the decree. Certain refinements on this limitation where the decree is challenged as a nullity, it is unnecessary to discuss here. The appellant's contention is that the plaintiffs ought to have set up their personal claim to the suit property in execution, and that they were bound to do so under Section 47. Having failed to do so, it is contended, the order for sale and the consequential sale operate constructively as res judicata. The bar to the present suit, as I understand the argument, is not that the plaintiffs must have come by way of application under Section 47 now, but the bar of the principle of Section 11 that a plea which would bar execution against the property is one which the plaintiffs were competent to set up and ought to have put forward in the execution proceedings.
9. Here, I may consider one of the principal contentions of Mr. A. Shanmughavel for the respondents. Learned Counsel referred to Order 22, Rules 3 and 4 submitted that a person brought on record as legal representative can raise any pleas, appropriate to his character as legal representative and cannot set up his own independent title. Learned Counsel argued that his clients would have gone against this well-established principle, if in the execution proceedings they had put forward their independent title, when they had been added to the suit in their representative capacity. A number of cases where representatives were confined in their defence to their representative character were cited before me. All these have clearly no bearing. To start with, as far as Order 22, Rules 3 and 4 are concerned, Order 22, Rule 12 expressly provides that nothing in Rules 3, 4 and 8 shall apply to the proceedings in execution of a decree or order. The Code defines ' legal representative ' as a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased. Sections 50 and 52 provide for execution against the assets of the deceased. The remedy of the decree-holder is by attachment and sale of the assets of the deceased debtor. A reading of the sections leads to the inference that, when an application for attachment is made or an order for sale after attachment is sought, it is open to the legal representative, against whom the order is claimed as the person in possession of the assets, to contend either that the property sought to be attached and fold is not the property of the deceased, or that he has accounted sufficiently for such property of the deceased as came into his possession. When execution is proceeded against a legal representative under Section 50 there is no question of a person being proceeded against in one of his two capacities, say, as in the case of a person being proceeded against as trustee or guardian. To the extent of the property of the deceased that has come into his hands, the legal representative is liable for the decree against the deceased. The liability of the person impleaded as legal representative is determined and fixed with reference to the estate of the deceased, that has come into his hands. The following passage in Swaminatha v. Somasundara I.L.R. (1938) Mad. 1080, tersely brings out the true position:
Learned Counsel suggested to us at one stage of his argument that the plaintiff's capacity in his character as legal representative or son of his father is so wholly different from his individual capacity that we should hold that though in his character as his father's son or representative he might have been properly impleaded in O.S. No. 57 of 1922, he must be dealt with as not a party at all in his individual capacity and he invoked the analogy of the position of a trustee in relation to his personal estate and to the trust estate respectively. But when we drew his attention to the line of cases in this country under Section 47, Civil Procedure Code, holding that even a person who is sued as a representative is a party to the suit within the meaning of Section 47 when he is claiming that certain properties belonging to him in his personal right are not to be attached in execution of a decree obtained against him as legal representative, learned Counsel admitted that the analogy of a trustee was not a true analogy.
10. The contention that legal representatives could not put forward their personal title to the property sought to be attached is devoid of merits. As far as this particular plea is concerned, it is not even inappropriate to their character as legal representative. An honest judgment-debtor in execution against whom a property not belonging to him is attached, may .object to the execution pointing out that it is not his property. Of course, if his plea is overruled, the order may not bind the real owner if he is not a party to the proceedings. The plea does not go contrary to the decree. The decree can be executed only against the assets of the deceased, and, when objecting to execution being taken against any property not belonging to the estate of the deceased, the objector is not putting up any plea inappropriate to the occasion, the validity of the decree not being questioned. We are here dealing with a simple money decree which has to be executed and may be executed against the assets of the debtor.
11. As the liability where the decree is executed against a legal representative is of the property of the deceased debtor, the initial burden is upon the decree-holder to establish that the property proceeded against is the property of the deceased. When the representative denies that a particular property proceeded against is the property of the deceased, the matter has to be decided in execution proceedings. Sub-section (2) of Section 50 and that of Section 52 clearly envisage such enquiry in execution proceedings. It is manifest that the question whether the property is one that could be proceeded against in execution is one relating to execution, discharge or satisfaction of the decree. Reference in this connection may be made to Hamidgani Ammal v. Ammasahib Ammal : AIR1941Mad898 . That was a case of a defendant vendor in a suit for specific performance dying after a decree and before execution. Pending execution proceedings, the person who was brought on record as legal representatives of the deceased instituted a suit to establish her independent title to the property, and the question was whether the claim put forward by the representative should have been decided in the execution proceedings and Section 47 was a bar to the suit. The Full Bench pointed out the distinction between a decree concerning property and a simple money decree. It is pointed out that, when a decree relates to property in which the representative claims interest, it will not be binding upon him, unless he is a party to the suit itself. If he is not a party to the suit, his rights are entirely unaffected and he will be in a position to enforce them in a suit instituted by him for that purpose. The Full Bench said:
Section 47, Civil Procedure Code, only requires to be decided in execution proceedings those questions which arise between parties to the suit in which the decree has been passed or their representative and which relate to the execution, discharge or satisfaction of the decree. Where a stranger to the suit claims as his immoveable property which has been the subject-matter of a decree, that claim cannot in law be regarded as being a question relating to the execution, discharge or satisfaction of the decree. There are decisions of this Court to the effect that in execution proceedings arising out of money decrees questions relating to the property attached must be decided in execution proceedings and not by a separate suit, but this is an entirely different matter because the correctness of the decree is not called into question.
12. The last observation above extracted is decisive of the question. As Mulla puts it in the 13th Edn. of the Civil Procedure Code, at page 233, if property is attached as property of a deceased judgment-debtor, in the hands of his legal representatives, and the latter objects that it is not property of the deceased but his own property, the case falls under this section, for the legal representative is not setting up jus tertii. The foot-note refers to a number of cases for this proposition.
13. It is worth referring to some of the cases. In Seth Chand Mal v. Durga Dei I.L.R. (1890) All. 313, a Full Bench of five Judges, Straight, J., observes, referring to Sections 244 and 234, of the old Code, corresponding to the present Sections 47 and 50 of the Code:
I think it (Legislature) intended that the task of finding out whether there was property in the hands of the representative of the deceased judgment-debtor was to be left to the Court executing the decree and that it meant that the Court executing the decree was to find this fact for the purpose of execution for bringing the property to sale and giving the auction purchaser a good title under the sale; and it could not have been intended, so far as the auction purchaser was concerned, to leave him open to a subsequent suit at the instance of the representative of the deceased judgment-debtor to have it decided that what in execution had been found to be part of the estate of the deceased judgment-debtor was not a part, and that what was brought to sale had been impliedly brought to sale. I have already said that Section 244 gives power to determine question arising between the decree-holder and the representatives of the deceased judgment-debtor, and I think I have pointed out that under the terms of Section 234, arises the very question as to whether a property which had come to the hands of the representative of the deceased judgment-debtor was of the assets of the deceased judgment-debtor or not. It is also to be noticed that the Court has to make the enquiry to ascertain to what extent the assets that have come to the hands of the representative have not been disposed of.
Unless it has full power in the matter to make such inquiry under Section 244 as between the decree-holder and the representative of the deceased judgment-debtor which should have force and binding effect, it seems to me that Section 244 would be shorn of much of its usefulness. My view, therefore after serious consideration, is that the present is a case in which there could have been in the execution proceedings which was before the Court below a proper determination of the question arising between the decree-holder on the one side and the representative of the deceased judgment-debtor on the other of the rights of the one party and other; that is to say the right of the decree-holder to bring the property to sale and the right of the representative of the deceased judgment-debtor to hold to on to the property as his own property.
I do not think, when the representative of the deceased judgment-debtor says, in regard to the property which he contends is not the property of the deceased judgment-debtor but is his property, that it can rightly be said that he thereby sets up a just tertii. I think he can only do that as trustee or as representing some character wholly separate from his personal and individual character.
14. In Punchanun Bundopadya v. Rabia Bibi I.L.R. (1890) Cal. 711, again the same view was taken. The headnote sums up the principles thus:
An objection taken by a person who has become the representative of the judgment-debtor in the course of the execution of a decree to the effect that the property attached in satisfaction thereof is his own property, and not held by him as such representative, is a matter cognisable only under Section 244 of the Civil Procedure Code and not the proper subject-matter of a separate suit....
15. In Venkapayyan v. Karimapanakal Parvathi I.L.R. (1903) Mad. 501, the question whether improvement on land attached in execution of a decree of a property of a deceased judgment-debtor which has come to the hands of his representatives as such or whether they belonged to the representatives who had been brought on record in execution--it was held--can be and ought to be decided only under Section 244 (a) (the present Section 47) and not by separate suit. In Machamma v. Kanakamma : AIR1935Mad923 , referring to a claim preferred under Order 21, Rule 58 and Section 47 by a widow brought on record as legal representative of the deceased husband when certain properties were attached which she claimed belonged to her, Varadachariar, J., said::
It is fairly well settled that when a person who has been impleaded as the legal representative of a defendant or a judgment-debtor claims that certain properties attached as the property of the judgment-debtor are his own, his remedy is by an application under Section 47 and not by an application under Order 21, Rule 58.
16. Reference may also be made to Gokulsing Bikaram Pardeshi v. Kison Singh I.L.R. (1910) 34 Bom. 546, where the auction purchaser as in the present case was a third party. In that case in a money suit on the death of the original debtor, his widow and brother were brought on record pending the suit. 'A decree was passed against them, the claim being payable out of the property of the deceased. Before the decree was executed, both the widow and the brother died and then certain other persons were brought on record as legal representatives of the deceased original debtor. Overruling their objection that they had no property of the deceased a property in their hands was attached and sold in satisfaction of the decree, a stranger becoming the purchaser of that property. When the Court auction-purchaser instituted a suit for possession of the property against the said representatives of the deceased debtor,, the dispute, it was held, was one falling within Section 244 (the present Section 47). It was observed that the representatives were bound to object to the attachment and sale under Section 244. It was urged in that case, that, whatever might have been the result if the decree-holder had been a party to the later suit, as the dispute then before the Court was one between the auction purchaser, a stranger to the prior suit and execution proceedings therein, and legal representatives of the judgment-debtor, Section 244 did not apply. The Court answered the question thus:
The answer to that contention is that, though an auction-purchaser at a Court sale in execution of a decree is not a party to the suit in which the decree was passed and though he is not a representative of either the decree-holder or the judgment-debtor for the purpose of Section 244, yet if the question raised by the judgment-debtor as to the legality of the Court sale is virtually one between the parties to the suit, and if in the decision and result of that question the auction-purchaser is interested, the judgment-debtor ought not to be allowed to attack the sale in a suit. That is upon the ground that he is precluded by Section 244, from raising the question as a defence in any proceeding other than those under that section.
17. Mr. Shanmughavel referred to Annammal v. Ramaswami : AIR1941Mad161 , where a Full Bench of this Court held that a stranger who purchases property at a Court auction held in execution of a money decree is not entitled to apply for possession as against the judgment-debtor or his representative-in-interest under Section 47, Civil Procedure Code, and that Section 47 does not apply to a case where the dispute arises between a party and his own legal representative or between two persons who both represent the same party. The Full Bench held that in such a case the aggrieved party's remedy is by way of suit. Learned Counsel submits that the auction purchaser in this case is a representative of the judgment-debtor, that is, the present plaintiffs and that, therefore, a suit is the proper remedy. The immediate answer to this, is, first we are not very much concerned in the present case with the form of the proceedings. We are on the question whether there has been a final and unimpeachable determination of title to the suit property by confirmation of the sale. Can a judgment-debtor, by avoiding raising an objection before confirmation of sale, get round the provisions of Section 47 and the finality attached to the determination, express or implied, in execution proceedings? I think not. Next, the question has become academic, after Act LXVI of 1956 under which a fresh Explanation to Section 47 has been substituted. By this Explanation which came into force on 2nd December, 1956, for the purpose of Section 47, a purchaser at a sale in execution of a decree is deemed a party to the suit. Before this amendment, there has been divergence of opinion between several High Courts and conflicting decisions in the same Court as to the position of the stranger auction purchaser. The result of the amendment is to make the purchaser in execution a party to the suit on his own account for the purpose of Section 47 and do away with several conundrums that have been propounded with reference to his position. There is no question after the amendment of his being brought into the dispute and looked upon as representative of the plaintiff or defendant, or decree-holder or judgment-debtor. See Mulla's Civil Procedure Code, 13th Edn. at page 241. A question may still arise whether for the purpose of Section 47 the parties are arrayed in opposing interests, or the interest of opposing parties are involved in the matter mooted. That would depend upon the facts of each case. The only, question that may hereafter probably call for examination, when a dispute arises between one or other of the parties to the decree and a stranger auction purchaser, can be whether the dispute relates to the execution, discharge or satisfaction of the decree. The dispute in this case clearly being one relating to execution, discharge or satisfaction of the decree, and between the judgment-debtors and auction purchasers, both parties to the suit under the Explanation to Section 47, clearly the question raised is one falling under Section 47, Civil Procedure Code.
18. In view of the amendment of the Explanation to Section 47, the Bombay case Gokulsing Bhikaram Pardeshi v. Khan Singh I.L.R. (1910) 34 Bom. 546, can be followed as an authority in the present case. In the Bombay case the suit was by the auction purchaser for possession. The present is a converse case. Were the legal representatives of the judgment-debtor in execution sue for possession from the auction purchaser who has been able to secure possession without resort to proceedings for delivery in execution. It is not a requisite that the auction-purchaser must obtain delivery of the property purchased only by proceedings in Court and under Order 21, Civil Procedure Code. It is not obligatory on him to apply to Court for delivery, if he could secure it otherwise. On the sale becoming absolute, his title got perfected and complete and his right to possession unimpeachable as against all the parties to the suit and those claiming under them. In that right the auction-purchaser here secured possession by redeeming an othi that was subsisting on the property and subject to which it was sold. The only question that has to be determined in the present suit on the merits is whether the plaintiff can show now a better title to possession of the property than the defendant auction-purchaser in possession. The clear answer has. to be 'no'. As principal parties to the execution proceedings who could have objected to the execution and had a determination of their personal title to the property before the title to the property vested in the defendant, it is manifest the plaintiffs cannot agitate the question by way of separate suit. An object, the Legislature should have had in view when enacting the several provisions in the Code relating to execution is obvious. It is to provide a complete and effective machinery by which the auction-purchaser at an execution sale could obtain an absolute and conclusive title to the property sold in a simple and speedy manner. It is of the utmost importance that all objections to execution sales should be disposed of as cheaply and speedily as possible ' observed Lord Macnaghten in Prosunno Kumar Sanyal v. Kasidas Sanyal I.L.R. (1892) Cal. 683. The bar is absolute, call it estoppel, statutory bar following from Section 47 or res judicata. In Ramanna v. Nallappa Raju : 2SCR938 , the Supreme Court remarked ::
It is well settled that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated when it arises between parties to the decree, only by an application under Section 47, Civil Procedure Code, and not in a separate suit.
19. Apart from a statutory bar, when one sues in the execution Chapter, the doctrine of estoppel could also be applied to this case. Under the rule of estoppel, when a person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit, or proceeding between himself and such person or his representative, to deny the truth of that thing. This is estoppel by conduct. Res judicata is estoppel by judgment or estoppel by record. There can be no denying that the conduct of the plaintiffs in the sale proceedings attracts the rule of estoppel by conduct. The plaintiff who had full knowledge that the property being sold as assets of the deceased liable for the decree amount, permitted the property to be sold. The proceedings in execution were regularly gone through after notice to them and in spite of opportunities provided under the Code itself for objecting to the sale, the property was allowed to be put up for sale. A bidder at the auction would, in the circumstances, quite properly infer that the legal representatives of the judgment-debtor who were parties to the execution had no objection to the property being sold as liable for the decree amount. It would be unjust if this manifestly misleading conduct should be allowed to have its way and a bona fide purchaser in a Court auction defeated. If they had any idea of asserting their own title, they were in duty bound to speak before the sale.
20. Already Court auction-purchases are avoided by many as likely to lead to further litigation. This results in execution sales often not securing the proper value of the properties sold. Should a person who does not raise any objection to his property being sold in execution, when according to him it is liable to be so sold, be permitted after the sale is confirmed to impugn the same? Proceedings in execution of decree by attachment and sale of property and under Sections 50 and 52 of the Code would become Very difficult and extremely unstable, if the legal representative of the judgment-debtor could quietly stand by and after the sale has become absolute come forward and assert that the sale is void as against them, the property being not an asset of the judgment-debtor in their hands. To interpret the law as permitting such challenge would, it is apparent result in disastrous consequences. That would greatly undermine the confidence of the public in execution sales. Law does not permit any such challenge by the judgment-debtor after the sale has become absolute. I do not find how his legal representative can be in a better position when the complaint he puts forward is only that the property in question is not liable for the decree amount. Once a sale duly held is confirmed under Order 21, Rule 92, Civil Procedure Code, as between the auction-purchaser and the judgment debtor, the sale gets concluded and under Section 65, Civil Procedure Code, the property vests in the auction-purchaser. As discussed earlier the legal representative of the judgment-debtor does not take a dual capacity in execution proceedings under Sections 50 and 52, Civil Procedure Code. Only there is a limit of his liability. There is no provision in the Code for a party to execution proceedings who has proper notice and full knowledge of the sale proceedings and stood by the sale, to question the sale by suit on grounds that were available to him before confirmation of the sale particularly when the property in dispute as in this case is not one which is inalienable on grounds of public policy. On the contrary one finds a bar.
21. That leads us to the question of res judicata. It is now well-settled that the principles of constructive res judicata is applicable to execution proceedings. In Mohanlal v. Benoy Kishan : 4SCR377 , Ghulam Hasan, J., observed:
The foregoing narrative of the various stages through which the execution proceedings passed from time to time will show that neither at the time when the execution application was made and a notice served upon the judgment-debtor, nor in the applications for setting aside the two sales made by him did the judgment debtor raise any objection to execution being proceeded with on the ground that the execution Court had no jurisdiction to execute the decree. The failure to raise such an objection which went to the not of the matter precludes him from raising the plea of jurisdiction on the principle of constructive res judicata after the property has been sold to the auction purchaser who has entered into possession.
22. In Basavaya v. Hanumantha Reddy (1944) 2 M.L.J. 46 : I.L.R. (1945) Mad. 211, 212, the following principle was laid down by this Court:
There can be doubt that if a person during the course of execution proceedings does not raise an objection to the sale of property which, if raised, would prevent the property from being brought to sale, he is debarred by the principle of constructive res judicata from raising that same objection either in subsequent proceedings or at a subsequent stage in the same execution proceedings.
23. Mr. Shanmughavel strenuously contended that, as in the present case as between the decree-holder, the judgment-debtor and his daughters (legal representatives of the judgment-debtor) there was a prior adjudication in a regularly instituted suit O.S.No. 195 of 1957 finally determining that the property in question did not belong to the judgment-debtor but belonged to them, that should prevail. It is urged that the auction-purchaser whose title is that of the original judgment-debtor, is precluded by resnjudicata from contending that the property belonged to the judgment debtor and not to his daughters. This overlooks that, when the question arose in the execution proceedings, the daughters as legal representatives brought on record must have put forward their independent title. They could have pressed into service the earlier adjudication in their favour. The effect of the earlier adjudication is to dispense with a fresh determination of the issue, where the requirements of Section 11, Civil Procedure Code, are satisfied. Even before the sale, the earlier determination in O.S.No. 195 of 1957 had become final and could well have been put forward in the execution proceedings. The plaintiffs failed to do so for reasons best known to them and their advisers, and allowed the execution to proceed as if the property belonged to the deceased judgment-debtor and was liable for his debts. When there are two adjudications interpartes, the later adjudication should be taken as superseding the earlier one. The proceedings leading to the sale involved a decision as to the liability of the property being proceeded against as assets of the judgment-debtor in the hands of his legal representatives. Order 21, Rule 64 empowering the Court to pass an order for sale of the property attached, provides that any Court executing a decree may order that any property attached by it ' and liable to sale ' or such a portion as may seem necessary to satisfy the decree should be fold. The question whether the property is or is not liable to sale is thus put in issue when an order for sale is made. If a former decision is a bar to the claim that the property is liable the decision should have been pleaded in bar placing it on record as evidence. When an objection is raised that the property is not liable to be sold, the Court has to adjudicate on the dispute. Section 2 (2) defining 'decree' includes in the definition the determination of any question within Section 47. If despite the objection by the representatives of the deceased, an order for sale is passed, the order is subject to an appeal as one under Section 47 and it is as good and final an adjudication as could be had in a suit where title to property is put in issue. Suppose the plaintiffs in this case had, before the sale raised the issue as to the liability of the property as assets of the judgment-debtor in their hands and the decision has gone against them, by the Court wrongly overruling the plea of res judicata based on the former decision in O. S. No. 195 of 1957. Clearly they are bound by the later decision, whether right or wrong. If they were aggrieved by the decision, they should have preferred an appeal. By their failure to plead their case, where it was incumbent on them to do so, they cannot place themselves in a better position. The sale under orders of Court impliedly overruled all objections to execution against the property as an asset of the deceased judgment-debtor and the sale has been made absolute. A determination of liability of the property is involved in the order for sale which has to precede every Court sale. It must, in the circumstances, be held that in the earlier proceedings, in execution resulting in the sale there has been an adjudication against their title, and that the property is an asset of the judgment-debtor liable for the decree. The bar of res judicata is clearly made out.
24. With reference to the defence plea that the suit itself does not lie, Mr. Shanmughavel submitted that the suit may be treated as an application under Section 47, Civil Procedure Code, and this Court may do so even in second appeal. True, it can be done. But here, converting the present suit into an application under Section 47 cannot help the respondents. They fail on the merits. Even if the suit is treated as an application under Section 47, their failure to plead their personal title before the sale is a bar to their raising it after the order for sale had become final and the title of the purchaser had become absolute. The bar of estoppel or constructive res judicata will be there even if the present proceeding is considered a proceeding under Section 47.
25. In the result, the second appeal has to be allowed. The judgment and decree of the lower appellate Court are set aside and that of the trial Court restored. The suit shall stand dismissed as decided by the trial Court but without costs. In this Court and in the lower appellate Court also the parties will bear their respective costs. No leave.