1. This second appeal is by the 36th defendant in the suit. His contention is that Items Nos. 1 and 2 had been in his possession and the plaintiff is not entitled to any remedy in respect of them. The plaintiff Kovilagam was a party to the suit, O.S. No. 12 of 1895 and it was found in that suit that these two items did not belong to the 36th defendant, but in the execution proceedings, the 36th defendant evidently without the knowledge of the plaintiff Kovilagam got delivery of these two items and has continued in possession of them till now. There is a distinct finding by the District Munsif that this delivery was evidently effected by fraud. The first objection raised by the appellant to the decree of the Subordinate Judge is that a separate suit does not lie for the recovery of the possession of these two items. The Subordinate-Judge has decreed these items in favour of the plaintiff. Mr. Krishna Menon contends that Section 47 of the Civil P.C. is a bar to a suit in respect of these two items. I think the contention is a sound one. The terms of Section 47 are very wide : 'All questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.' 'Though a person who was once a party might be exonerated in the course of the suit and though no decree is passed against him and no relief is given against him, yet if any question by virtue of the execution of that decree between the parties arises, such question must be determined according to the provisions of Section 47, that is to say, in execution; no separate suit will lie for the purpose of agitating any question which arises by reason of the execution of the decree, provided the party which raises the question was a party to the suit in which the decree was passed. In this ease, though there was a distinct finding by the Court that these items belonged to the plaintiff Kovilagam and not to the 36th defendant, yet, in execution the 36th defendant was able to get these properties delivered without the knowledge of the plaintiff Kovilagam and without notice to the plaintiff. Notwithstanding that I think the provisions of the section are so clear that it is not possible to hold that in a separate suit the question as to the right to these properties can be agitated, the plaintiff had his remedy in execution. His contention is that he had no knowledge of it and that the proceedings were in fraud of his rights. If there was fraud and he was kept out of the knowledge of the execution proceedings he could enforce his remedy by a proper application as the law of limitation allows him the deduction of time during which he was kept out of the knowledge of the execution proceedings. This matter is concluded by authorities and I do not think it is necessary to discuss this question in detail. In Ramaswami Sastrulu v. Kameswaramma (1900) 23 Mad. 361 a Full Bench of the High Court held that even if a person who was a party was subsequently exonerated in the course of the suit, yet he was a party for the purpose of Section 244 of the old Code corresponding to Section 47 of the present Code. The learned Judges distinctly disagreed with the reasoning of the learned Judges in Nagamuthu v. Savarimuthu (1892) 15 Mad. 226 upon which Mr. Sivarama Menon for the respondent (plaintiff) relied. In a recent case decided by the Patna High Court it was held that even if a party to the suit was not a party to the execution proceedings, yet he lost his right to bring a suit if in the execution proceedings, something was done to his prejudice. The learned Judges rely upon the wording of the section and say that whether he was a party to the execution proceedings or not, is bound by these proceedings and he could only get these proceedings upset in the manner provided for by the rules relating to the execution of decrees. If any property was improperly delivered to the plaintiff it was open to the party who lost the property to get back the property in the mode provided for by the Civil P.C. in other words, no suit would lie to set aside anything that was done in execution of the decree passed in a suit to which the person raising objection is a party. That being so it is not necessary to consider the other questions raised, in this appeal.
2. In the result the appeal is allowed and the judgment of the Subordinate Judge is reversed and the plaintiff's suit as regards items Nos. 1 and 2 is dismissed but considering the fact that the 36th defendant did not ask for a specific issue on this point and considering that this question was not raised in both the lower Courts and considering his fradulent conduct, I think, he is not entitled to costs, either in this or in the Courts below.