1. In this case, it appears that a certain sum of money was due tinder a mortgage decree for sale. The final decree had been passed and that decree, it now appears contrary to what the trial Court thought, did provide in the usual way for subsequent interest. Now, the sale was going to be held in February. In the previous December, it appears that the mortgagor went to his creditor and asked what amount was due. He was given a certain sum as due and he paid that sum. He then went some days afterwards to a pleader and asked the pleader to find out what exactly was due and he came to the conclusion that he had overpaid by a sum of Rs. 195 or thereabout. The calculation made by the pleader seems not to have allowed any subsequent interest. It was probably based upon the amount stated in the sale proclamation. However that may be, the mortgagor brings his suit before the Munsif; that is, in another Court than the Court in whish the mortgage suit was being tried. He alleges amongst other things that the defendant had taken the excess sum from him by fraud and the word 'cheating' is actually to be found in the plaint. If he had not done that, then he would have had just as good a cause of action and the present appeal would not have been maintainable. But, in view of the terms of Article 35, Clause (ii), Provincial Small Cause Courts Act, it appears to me that the case made in the plaint obliges us to entertain this appeal. I think that all the more because both the lower Courts, so far as I can see, have found that the defendant took this sum fraudulently. The language of the Munsif in this respect is this:
The defendants have failed to show that they were entitled to any sum in excess of Rs. 1,419-4-0 as in the sale proclamation. I accordingly find that a Sam of Rs. 195-12-0 was-fraudulently realized by the defendants in excess and so they did not mention the amount received in the receipt Ex. 1.
2. In the same way, the lower appellate Court states without giving any reason 'the defendants obtained the excess money under false representation.' But from the beginning to the end there appears to be no representation except that that was the amount due under the decree. In these circumstances, both the lower Courts having found fraud and fraud having been charged in the plaint, I am not prepared to say that this case does not come within the exception and I am, therefore, of opinion that we may entertain this appeal.
3. The next point is whether this suit brought in another Court was bad by reason of Section 47, Civil P.C. That section says that all questions relating to satisfaction, execution or discharge of a decree are to be dealt with by the executing Court. In my opinion, this is a question of that character; and, in two cases, Abdul Karim v. Islamunnisa Bibi  38 All. 339 and Ganpat Rao v. Anand Rao  44 Bom. 97, it seems to me that it has been so held. These were both cases where it was said that land or money had been taken in excess. In my judgment, Section 47 is not evaded merely by interlarding the application with epithets such as fraud, cheating &c.; This was essentially a case where the plaintiff, if he had been properly advised, would have applied under Section 47, Civil P.C., to the Subordinate Judge's Court and asked for the refund of the money simply on the ground that he had over paid that money, or that it was money paid in excess. It was entirely unnecessary on his part to make charges of cheating, fraud or anything of the kind.
4. That being so, it seems to me that this suit was altogether incompetent. The appeal must, therefore, be allowed and the suit dismissed with costs in all the Courts.
5. I agree.