1. The first point raised in this appeal is that the petition for restitution of possession by the respondents is incompetent inasmuch as the application on the ground of dispossession is barred by Order XXI, Rule 102, C.P.C That rule applies to cases where a person who gets title from the judgment-debtor is prevented from objecting to the delivery of possession to the judgment-creditor of the property directed to be delivered to him. In this case the respondents obtained a sale of the judgment-debtor's property on 23rd July, 1920, when an application for execution was pending and the property had been divided but lots had not been cast. The execution petition was dismissed on the ground that one of the decree-holders had attained majority and that the petition filed by the next friend was not sustainable. A subsequent application for execution was made but no lots were cast and the items the fell to the share of the decree-holders were not determined. Without determining the items that ought to go to the decree-holders, delivery was ordered and certain items of property in the possession of the respondents were delivered to the decree-holders. They applied to the Court for restitution of possession on the ground that it was not ascertained at the time of delivery which items fell to the decree holder's share. This contention was upheld by the District Munsif and he ordered restitution of the property. On appeal the Subordinate Judge of Bezwada upheld the order of the District Munsif.
2. Mr. Markandeyalu's objection to the order is that it is not competent for the transferee of the judgment-debtor's right in the property to tile such an application. It is conceded that the judgment-debtor himself could file an application if any item of property is wrongly delivered to the decree-holder. The complaint in this case is that before determining what item fell to the share of the decree-holder particular items of property in the possession of the respondents were delivered. Such a contention could have been put forward by the judgment-debtor, and it is difficult to see how the transferee from the judgment-debtor pending execution could not put forward the same contention. This application is not one under Order XXI, Rule 99 or Rule 101 but one under Section 47. Though wrongly Rules 99 and 101 are mentioned in the petition we have to- look at the substance of .the petition and not merely at the heading. Mr. Markandeyalu relies upon Kanakasabai Mudaliar v. Rajagopal Naidu 42 Ind. Cas. 523 : 6 L.W. 568 and Rev. V.C.L. Neilson v. Sadananda Swamiar 8 Ind. Cas. 805 : 9 M.L.T. 136 in support of his contention. These cases have no application to the present for, there the application was made not on the ground that the property was wrongly delivered but on the ground that the property was not liable to be delivered as the applicants were in possession. Their possession was only the possession of the judgment-debtor and, therefore, they could not apply for restitution under Rule 99 or 101. The application of the respondents, therefore, was not incompetent.
3. The next contention raised by Mr. Markandeyalu is that notice was served On .the judgment debtors and they did not object to the delivery of the property and, therefore, they cannot question the delivery after it has taken place. It does not appear that notice was issued to the respondents and the judgment-debtor that the items now in dispute were going to be delivered to the decree-holder. Even if such a notice was issued, it would not be competent to the Court to deliver certain items of property without determining whether those items fell to the share of the decree-holder. In a case where a division of property has to be made and lots cast before the share of each decree-holder could be ascertained it would not be proper to order delivery of particular items to the decree-holder. Therefore, the service of notice in this case even if it did mention particular items would not be proper notice as required by law, and it would not prevent the respondents from getting the relief available to them under Section 47. in 'Vallabha Valia Raja v. Manakata Kovilayath : AIR1925Mad1133 and Jainulabdin Sahib v. Krishna Cheltiar : AIR1921Mad420 it was held that a judgment-debtor's remedy is under Section 47 when property was wrongly delivered or some item of property to which the decree-holder was not entitled was wrongly taken possession from the judgment-debtor.
4. In the result the appeal fails and is dismissed with costs.