JUDGMENT
Bilal Nazki, J.
1. Heard learned Counsel for parties.
2. There is a short question involved in this appeal on which the fate of the appeal rests therefore, we are confining ourselves to only one question which is basically a question of Law. But before that necessary facts will have to be mentioned.
3. Defendants Nos. 1 to 4 and 6 are the appellants. They were defendants in Original Suit No. 4 of 1976 on the file of the Subordinate Judge, Madanapalle, which was filed by the plaintiff who is first respondent in the appeal. He filed the suit for partition of the property. The partition was sought as an alternative relief and the basic relief sought for was the declaration of plaintiff’s title to the plaint B-Schedule land and for possession. The relations between the parties was not disputed. According to the plaintiff himself, he had himself filed earlier a suit for partition, which was O.S.No. 64 of 1954. A preliminary decree was passed and a final decree on the basis of a compromise entered into between the plaintiff and defendants was also passed. B-Schedule mentioned in this suit was allotted to the plaintiff by the final decree. But the final decree was not engrossed on a paper having sufficient stamps. Thereafter no steps were taken for the execution of decree by the plaintiff, which was passed on 11.2.1974 and then the present suit was filed on 1.8.1975. The suit was resisted by the defendants/appellants on various grounds. One of the grounds was that the suit was not maintainable in view of Section 47 of the Code of Civil Procedure.
4. On the basis of the pleadings of the parties, various issues were drawn by the Trial Court. Some of the issues which need to be mentioned are:
Issue No. 1 : “Whether the final decree dated 6-3-1957 in IA No. 77/1957 is not executable as pleaded by the plaintiff ?”
Issue No. 5 : “Whether the plaintiff is entitled to declaration of her title to any of the suit properties or for partition of A-Schedule property ?”
Issue No. 7 : “Whether the suit is barred by Section 47 CPC?”
5. We have referred to Issues Nos. 1 and 5, as an argument has been made by the learned Counsel for appellants that since the first decree was non-executable therefore, they had no alternative but to file a fresh suit. According to him, the correct paimaish numbers of lands were not given in the final decree therefore, it was not executable. But the Trial Court found this issue also against the plaintiff and no cross-appeal has been filed and even otherwise, on record we do not find anything to come to the conclusion that the decree passed in the earlier suit was not executable. Now the main question is, whether the suit was maintainable in view of Section 47. Section 47 of the Code of Civil Procedure is reproduced below :
“47.(1) 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.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purpose of this section, be determined by the Court.”
It gives no room for any doubt that all rights accruing out of a decree between the parties have to be agitated in an execution application and it includes questions relating to execution, discharge or satisfaction of the decree. The present suit was filed primarily for settling a question relating to a decree which had already been passed in O.S. No. 64 of 1954. Therefore in our view, even if the plaintiff believed that the final decree passed in O.S. No. 64 of 1954 was not executable, this was also a question which was related to the execution of a decree and had to be agitated before the executing Court and not by a separate suit. Explanation II(b) also settles the Issue No. 5 which we have referred to above and explanation II(b) lays down, “all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.” Therefore in our view, a separate suit was not at all maintainable when there was a decree passed by the Trial Court between the same parties for the same purpose with regard to same suit property. Reference has been given at the bar to the various judgments of the Courts like Abdul Kareem Sab v. Gowlivada S. Silar Saheb and Anr., AIR 1957 AP 40. The learned Counsel for appellants submits that this is the judgment on which the Trial Court had-relied. This is the judgment by a learned Single Judge of this Court. The facts of the case that were mentioned in this judgment are that the defendant was the appellant before the High Court. The suit was for partition of a house in Kurnool. There was a prior suit for partition among the heirs of Hassu Bhai to whom this suit property belonged. It resulted in a preliminary decree on 15.12.1931. This is a decree declaring the shares of plaintiff and several defendants in the suit. No further steps were taken to make out the rights of the parties as declared by the preliminary decree. Thereafter a fresh suit was filed. The defence taken by the defendants was that the suit was not maintainable in view of the prior decree for partition that the title of plaintiff had extinguished by the adverse possession. In this case we are not concerned with the second question. The High Court noted down, “A partition suit in which a preliminary decree has been passed is still pending suit and the rights of the parties have to be adjusted at the time of the final decree” ………. “At the same time, it cannot be doubted that when a preliminary decree declaring a right to partition or the shares of the parties, has not been given effect to by the parties proceeding to partition in accordance with it and the property continues to be jointly held by the co-sharers, their right to partition continues. So long as they continue to be interested in the joint property as co-sharers, it is competent for them to bring a suit for declaration of their right and for partition in case their right to partition is denied or challenged. In the present case, even though the plaintiff in O.S.No. 565 of 1931 obtained a preliminary decree declaring his share in the common property, the co-sharers, who were the heirs of Hassu Bhai were content to remain as co-sharers without effecting partition of the house. In these circumstances, it is open to plaintiffs as purchasers of the interest of some of the co-sharers, who were defendants in O.S.No. 565 of 1931, to institute the present suit for partition against the defendant, the purchaser of the interest of the remaining co-sharers.”
6. Then it added, “It might be that a defendant in a partition suit has the liberty given to him to seek a partition and separate allotment of his share but the law does not oblige him to do so. If there had been a final decree in the prior partition suit allotting certain property for the share of the plaintiffs or their vendors and directing them to be put in possession of the property so allotted, then Section 47 Civil P.C. might bar a separate suit and the remedy of the plaintiff would be to execute the decree for partition.”
7. Therefore, even in this judgment the learned Judge was of the opinion that once a final decree is passed, Section 47 C.P.C. would be a bar. We are not considering the opinion as to whether Section 4? C.P.C. would operate as a bar to fresh suit when only a preliminary decree had been passed and final decree had not been passed. The learned Single Judge has held Section 47 CPC would not be a bar to a fresh suit if the decree was only preliminary. There may arise another occasion when this question can be gone into. Therefore, this judgment also does not come to the rescue of the appellants that the suit was maintainable.
8. The learned Counsel for appellants relied upon another judgment reported in Shankar Balwant Lokhande (dead) by LRs. v. Chandrakant Shankar Lokhande and Anr., . This judgment is basically a judgment which deals with the period of limitation as to when the period starts to run after the final decree is passed and it does not directly deal with Section 47 CPC.
9. The learned Counsel for appellants also relied on a judgment reported in W.B. Essential Commodities Supply Corporation v. Swadesh Agro Farming and Storage Private Limited and Anr., . This judgment also deals with as to when the period of limitation starts after the pronouncement of judgment and it does not deal with applicability of Section 47 CPC.
10. For these reasons, we find that the suit was hit by Section 47 CPC and was not maintainable in view of the earlier decree between the same parties over the same subject-matter. Therefore, the appeal is allowed. The judgment and decree of the Trial Court is set aside. In view of the relationship of the parties, no order as to costs.