1. In this case the appellant is a decree-holder. The respondent is a lady who became the representative of the judgment-debtor pending an appeal. The suit in which these parties were engaged was a mortgage suit in which certain premises cal. led Taziakhana now in dispute were affected. The plaintiff, the present appellant, obtained a mortgage-decree against the mortgagor. After an appeal was filed, the defendant died and his widow the present respondent was substituted in his place. She now puts forward a claim in the execution proceedings under the decree that she is entitled to the property independently of her husband for whom she was substituted, and under a title derived from her father and her uncle, and she prays that the premises in Question should be exempted from sale in execution. It is questioned under what section this claim is instituted. But it is argued on her behalf that it is a claim under Section 241 of the old Code or under Section 47 of the present; and indeed it is necessary for the respondent's case that it should be so, because, she originally filed her claim before the Munsif and succeeded in the lower Appellate Court; and if her claim was made, as we might suppose it was made, under Order XXI, Rule 58, it would not have been open to her to appeal from the decision of the Munsif. Taking the claim then to be one under Section 47, it appears that the judgment of the lower Appellate Court in which it is allowed is bad, and defective.
2. Both the Courts have found that her title is good in so far as the points of fact are concerned, and with them, of course, we have nothing to do. But if the claim is taken to be one under Section 47, it is a claim for deduction of something from the decree. The decree has been made in respect of the Taziakhana in question and it could not be withheld from execution without in so far nullifying the effects of the decree, a course which is not open to the applicant under Section 47 to adopt. If the respondent had any right to make a claim under Order XXI, Rule 58, she has, of course, her right to a suit to effect the same purpose. Nothing that has taken place in this appeal can affect the right to sue. The result is that the Court below has not rightly perceived the nature of the application, or, if it has, it has misconceived the effect of Section 47. The appeal is, therefore, allowed, the order of the lower Appellate Court is set aside and the order of the Munsif must stand.
3. Under the circumstances of this case, we do not think it right to make any order as to costs.