JUDGMENT
R.N. Misra, J.
1. Title Suit No. 5/55 was instituted for ejectment of three defendants. The defendants were Padan, father of respondents 1 and 2; Dharama, respondent No. 3 and one Madan Samal. On 7-2-56 the suit was dismissed but Title Appeal No. 50/56 carried against the original decree was allowed on 1-4-59.
A second appeal (Second Appeal No. 257/59) was dismissed in this Court. Thus the decree in the title appeal was maintained.
2. Title Suit No. 56/61 was instituted by Padan, Dharama and Suma Bewa, respondent No. 4, for declaration that the decree in the Title Appeal No. 50/56 was a nullity on account of the fact that though Madan had died, his legal representatives had not been substituted. In the suit, the Court came to find that Madan died on 3-5-57 and Madan died heirless. Suma, the present respondent No. 4 was not his widow. He thus found that there was no abatement of the Title Appeal and the decree in that appeal was not a nullity. The suit was accordingly dismissed The Appeal No. 253 of 1965 carried against the decree in the second suit was dismissed on 30-3-66. Second Appeal No. 299/66 instituted in this Court against the appellate decree was dismissed on 3-2-67.
3. On 27-7-1966 Execution Case No. 94/64 was instituted to execute the decree in Title Appeal No. 50/56. Objection was filed under section 47 of the Code that the decree was a nullity for want of proper substitution. That objection was registered as Misc. Case No. 314 of 1966. On 15-11-1967, the execution case was withdrawn and on 2-12-1967 the miscellaneous proceeding was dismissed for non-prosecution.
4. The decree-holder levied execution case No. 3/68 against the respondents 1, 2 and 3 for executing the decree of the Title Appeal No. 50/56. He contended therein that Madan had died heirless. A fresh objection under Section 47, C. P. C. on the selfsame ground was raised. On this occasion, the respondent No. 4 also raised the same dispute. Miscellaneous Case No. 90/68 was registered on the basis of the said objection. The executing court overruled the objection. He referred to the decree in the subsequent suit and held: —
“The Court executing the decree cannot question the correctness of the decree. The question as to whether Madan was adopted away to some other family and whether he left behind any legal representative or not are not the matters regarding execution, discharge or satisfaction of the decree. Such questions are to be decided by a suit on examination of evidence. The executing court cannot go behind these findings, reopen these questions and determine afresh that the Court decided these points wrongly. These matters to my mind, have been properly decided by a separate suit.”
5. The judgment-debtors appealed. The learned District Judge by the impugned decision came to hold that the dispute was one covered under Section 47, C. P. C. and a separate suit was not maintainable. Accordingly, he vacated the decision of the executing court and directed the matter to be enquired into afresh. This appellate decision is impugned in the present appeal.
6. Section 47, C.P.C. provides:
“(1) All questions arising between the parties to the suit in which the decree was passed, or their representative, 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.
(2) x x x x (31 Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this Section, be determined by the Court."
7. The only point for determination in this appeal is as to whether a separate suit for a declaration that the decree in Title Appeal No. 50/56 was a nullity on the ground that there was abatement of the appeal for non-substitution of one of the respondents, was maintainable. If such a suit was maintainable, the decree obtained therein would be res judicata and between the same parties the matter would not be open to a fresh investigation in the execution proceedings. Sub-section (1) of Section 47. C.P.C. provides that all questions arising between the parties or their representatives in relation to execution, discharge or satisfaction of the decree is to be determined by the executing court and a separate suit is barred. Sub-section (3) provides that when a question arises as to whether any person is or is not the representative of a party, such question for the purposes of Section 47 has to be determined by the executing Court.
8. On behalf of the appellant it was contended that the learned District Judge went wrong in holding that an independent action was not maintainable and as such the finding reached therein was not res judicata and a fresh enquiry on the objection raised in the execution proceeding was bound to be undertaken. The objectors under Section 47 of the Code were the plaintiffs in the suit and it is they who had ultimately lost. In such setting, it is contended that the judgment-debtors cannot avail of the benefit of an enabling provision under Section 47, C.P.C. and on the footing of the provisions in Sub-section (3) of Section 47, C.P.C. it cannot be held that the suit. was not maintainable and the bar of res judicata cannot be brushed aside.
9. Several decisions were placed before me by counsel appearing on either side but none is a direct authority for the present dispute. Reliance was placed in support of the claim of the judgment-debtors on a Full Bench decision in the case of Awadh Bihari Tewari v. Sudarsan Rai, AIR 1965 Pat 427. The question that arose for determination in the said matter was as to whether the plea of nullity of the decree under execution arising on account of abatement could not be raised in an objection under Section 47, C.P.C.. It was held:–
“A question about the executability of a decree is a question relating to the execution of that decree. In spite of a decree being null and void for some reason, if it is put into execution, a party to the suit in which the decree was passed or his representative must have a chance, in the execution case, to raise objections against the executability of that decree either in whole or in part. The scope of Section 47 is wide enough and all objections to execution sales should be disposed of as cheaply and as speedily as possible. (1892) 19 Ind App 166 (P. C.) Foll.
There should be a liberal construction of the language in the section, so that all questions capable of determination by the Executing Court may be brought before it and the parties should not be driven to the worries and expenses of an independent suit unless the case is clearly outside the scope and purview of Section 47. The Executing Court has been given exclusive jurisdiction under this section, as to all matters relating to the execution of a decree and as a general rule, a separate suit has been barred. Where the interests of any person, who was not a party to the suit or his representative get involved in the question that comes before a court under Section 47, the proceeding can be converted into a suit as provided in Sub-section (2) and all relevant matters will be decided in that suit. These are clear indications of the wide scope of the section.”
It was again stated in the said decision:—
“A decree is void if the court passing it lacks jurisdiction, territorial, pecuniary, or in regard to the person of the judgment-debtor. It is so void when it is passed against a person who was not a party at all to the suit or who was a party but died without substitution of his legal representative before the conclusion of the hearing of the suit. When such a decree is put into execution such a party or his representative can raise objection against the executability of that decree under Section 47.”
10. The circumstances in which the dispute in the aforesaid case arose were certainly different from the facts of the present case. As already stated, the case in hand is one where one of the parties to the title appeal had admittedly died and before the decree was put to execution the judgment-debtors including the legal representative of the unsubstituted respondent of the title appeal initiated a separate action for a declaration that the decree in the title appeal was a nullity. With the propositions stated in the aforesaid Full Bench case, there is no dispute. But the question that pointedly arises for determination in the present case did not receive any consideration in the hands of their Lordships of the Patna High Court.
11. Reliance was also placed on a decision of their Lordships of the Supreme Court in the case of M. P. Shreevastava v. Mrs. Veena, AIR 1967 SC 1193. The point for determination in that matter was absolutely different and it is not necessary to refer to the said precedent at any length.
12. Mr. Rath for the respondents claimed that a separate suit was not maintainable and even if the judgment debtors had instituted such a suit, in view of the bar in Section 47 of the Code about non-maintainability of a separate suit, the Court had no jurisdiction to entertain such a suit. The findings arrived at in such a suit were a nullity and could not be availed of by the decree holder in the execution case. According to him, the provisions of Sub-section (3) were incorporated into Section 47 not only to enable the court to determine the questions arising as to representatives of parties, but to make it obligatory for the Court to determine such a question with a view to avoiding a separate suit. A reference to Objects and Reasons for Section 47 goes to show that:–
“The Committee redrafted Sub-clause (3) and made it compulsory on the Court to determine questions arising as to representatives of parties. In their opinion it is inexpedient that a separate suit should be instituted for the decision of such questions. The delay and expenses involved are often very great and results, in needless protraction of litigation…………….”
13. Read in this background I think, there is considerable force in the contention of Mr. Rath that Sub-section (1) and Sub-section (3) of Section 47 C.P.C. must be read together and the bar of a separate suit also covers matters provided for in Sub-section (3). Levy of execution proceeding contemplates the existence of an executable decree and when an execution proceeding is levied it would certainly be open to the judgment debtors or legal representatives of the persons against whom decrees have been passed notwithstanding the fact that such persons were dead, to resist the execution on the ground that there was no valid decree in existence which could form the subject matter of execution.
Sub-section (1) of Section 47, C.P.C. contemplates a bar of separate suit for all matters in respect whereof provision is made in Section 47 and the bar of suit thus extends also in respect of the matters provided for in Sub-section (3). This seems to be the proper view to take of the provisions of Section 47 of the Code.
14. In the case of Lakshan Chandra Naskar v. Ramdas Mondal, 33 Cal WN 795 = (AIR 1929 Cal 374) (FB) Rankin, C. J. delivering the judgment of the Full Bench of five learned Judges has laid down:–
“A question between plaintiff and defendant as to whether the decree has been satisfied or is a decree of which the plaintiff is entitled to have execution is clearly one of a class of questions which “shall be determined by the Court executing the decree.” This does not mean merely that the execution Court must determine it if it is raised in the course of the execution proceedings. It means that the Court executing the decree is given exclusive jurisdiction over this matter as being one which relates to the execution. The words “and not by a separate suit” show clearly that the section is forbidding for this purpose the use of the ordinary means whereby rights are determined. This is on my reading of the section an express negative to carry out and make clear the purpose of the section in pointing to a particular Court as the proper Court.”
15. Upon such conclusion, a separate suit was not maintainable and thus the findings reached in such a suit would not operate as res judicata for, the objection raised in the execution case. The learned appellate judge took the right view when he remanded the matter to the executing court for an enquiry on the objection raised under Section 47 of the Code. That objection had been thrown out by the executing court on the footing that the objection was not maintainable as it had once been determined in a separate suit.
16. The appeal has no merit and is accordingly dismissed with costs.