JUDGMENT
Y.P. Nargotra, J.
1. The appellant wan an allottee of plot No. 3, Sector No. 2 measuring 25 x 50 situated at Gujjar Nagar, Jammu, in which she constructed two rooms, one Kitchen with a bathroom and was living therein. Respondent No. 1, started living in the said house with the appellant and ultimately threw her out of the possession of the said house. The appellant filed a suit against respondent No. 1. The suit was decreed by the learned District Judge, Jammu on 10th April 1992. Respondent No. 1 went in appeal, which was also dismissed by this Court Judgment dated 2nd February 1994. Respondent No. 1 filed a Letters Patent appeal, which too came to be dismissed on 29th March 1996. The appellant then filed an execution application before the Court of learned District Judge, Jammu, seeking the recovery of possession from the Judgment-debtor-respondent No. 1. During the course of pendency of the said execution application, the appellant executed a Sale Deed in favour of respondent No. 1, which came to be registered by the Sub-Registrar, Jammu on 19th July 1996. Through this Sale deed, the appellant sold out and transferred her rights and interest in the decree and the subject matter of the decree in consideration of rupees one lac in favour of respondent No. 1. After having purchased the rights of the appellant under the said decree, respondent No. 1 filed an application under Section 146 read with Order 21 Rule 16 of the Civil Procedure Code for being impleaded and substituted in the execution proceedings for the original Decree-holder. The notice was issued to the appellant by the Executing Court and in objections to the application filed by respondent No. 1, she admitted the averments of the application of respondent No. 1 and conceded the impleadment of respondent No. 1 in the execution proceedings. Objections filed by the appellant bore thumb impression of the appellant as well as signatures of her Advocate, Mr. A. G. Sheikh. In support of her objections, she filed an affidavit duly attested by Public Notary Jammu, in which she was identified by her own Advocate, Mr. A. G. Sheikh as well as one more witness namely, Mohd Rafiq. After the filing of the said objections by the appellant, the Executing Court passed the following order: –
“14.8.96.
Counsel for the parties present.
In execution petition initiated by Misra Begum against Mohd Shaffi, an application supported by an affidavit accompanied by copy of the sale deed has been preferred in averring therein that he has purchased decree from Misra Begum vide sale deed dated and registered on 19.7.96 with sub Registrar, Jammu and consequently right of Misra Begum with regard to the property in execution of decree stood vested in him. He further contended that he may be substituted in place of Misra Begum as decree holder.
Notice of this application was, however, given to both Misra Begum and Mohd Shaffi. In response to the notice issued Misra Begum filed objections today and admitted the execution of the sale deed in respect of the decree passed in her favour and raised no objection in substituting Mohd Hussain purchaser of the decree in place of Misra Begum and the execution carried out at his instance. Similarly Mr. O. P. Thakur appearing for the judgment-debtor instead of filing the objections orally submitted at the bar to entertain no objection in substitution of Mohd Hussain in place of Misra Begum on the strength of the sale of the decree in respect of the decree. As such the application made by Mohd. Hussain is allowed and is ordered to be substituted in place of Misra Begum and necessary correction be also made in the Index. The application stand disposed of.”
2. This order passed by the executing Court was never challenged by the appellant in any appeal or revision and thus attained finality and accordingly, decree was executed and satisfied, as has been submitted by the counsel for the respondent.
3. In the year 1997, on 19th May, the appellant instituted a fresh suit in this Court against said Mohd. Hussain as well as Mohd Shafi, seeking declaration to the effect that Sale Deed dated 19th July 1996 executed in favour of defendant No., who is respondent No. 1 here in connivance with defendant No. 2, who is respondent No. 2 here, is null and void for having been obtained by fraud, mis-representation and under the threat of filing SLP in the Supreme Court and is, therefore, ineffective, inoperative as no consideration as per market value stood paid to the Vendor by the Vendee and the consequential relief of perpetal injunction for restraining the defendants from changing, alienating or parting with the property subject matter of the Sale deed was also sought.
4. The suit came to be transferred by this Court to the court of learned District Judge, Jammu for disposal under law vide order dated 9th July 1997. The respondents contested the suit factually as well on legal issues. The learned Trial court framed following preliminary issued for determination:
“1. Whether the suit in the present form is not maintainable? OPD
2. Whether the suit is hit by Section 47 of C. P. C? OPD
3. Whether mere suit for declaration without claiming relief for possession is not maintainable? OPD
4. Whether there is no cause of action accrued to the plaintiff to commence this suit against the defendant? OPD
5. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD
6. Whether the sale deed dated 19.7.96 has been executed by exercising fraud, mis-representation and under the threat of Hon’ble Supreme court/If so what is its effect? OPD
7. To what relief the plaintiff is entitled? OPP
5. However, took up for determination issues 1 and 2 only first. For deciding Issue No. 1, learned Trial Court has held that the suit of the plaintiff is not maintainable since the plaintiff has not sought any relief with regard to the order of the Executing Court when the plaintiff was able to seek further relief with regard to the said order of the Executing Court. On Issue No. 2, the learned Trial Court has observed and held as follows:-
“In the present case the execution of the sale deed is not denied by the plaintiff though she claims it to have been obtained by fraud etc. this all happened when the execution proceedings were pending before the executing court and the substitution because of assignment of the decree and the subject matter of the decree took place. The executing Court before substituting the assignee had issued a notice to the decree holder as well as to the judgment debtor and obtained their objections and thereafter passed the order of substitution, the said order having not been challenged and any fraud mis-representation or undue influence etc. exercised by the assignee over the judgment debtor could be challenged before the executing Court under Section 47 C. P. C and not independent suit, in view of the judgment referred above is maintainable. Issue No. 2 as such is proved and is decided accordingly.”
6. Learned Trial Court, in view of the findings returned on Issues No. 1 and 2, held the suit of the plaintiff not maintainable and dismissed the same without deciding the other issues involved in the suit. Aggrieved by the dismissal of the suit, the plaintiff-appellant has filed this appeal.
7. The contention of learned counsel for the appellant is that respondent No. 1 was a stranger and, therefore, could not be substituted in place of the appellant in the execution proceedings in view of the provisions contained under Section 47 of the C. P. C. Secondly, he has argued that he is entitled to maintain a Civil suit for challenging the validity of the sale deed independently as the said sale deed was obtained by the respondent No. 1 by exercising fraud and mis-representation upon the appellant. He has argued that learned Trial Court was not justified in dismissing the suit at the thresh hold without giving opportunity to the appellant for proving that the sale deed was the result of the fraud and mis-representation practiced upon the appellant by the respondents.
8. The contention of learned counsel for respondents, Mr. O. P. Thakur, is that the plaintiff-appellant cannot maintain the suit independently after having admitted the execution of the sale deed in her objections to the application filed for substitution by respondent No. 1 in the execution proceedings. He has submitted that since the plaintiff-appellant had sold the decree through the sale deed in favour of respondent No. 1, therefore, she could maintain the challenge thereto in the execution proceedings under Section 47 of the C. P. C and once it was not done, she could not re-open the issue by way of independent suit, for the reasons that order of the executing Court would operate as resjudicata by the application of the principles of the said doctrine.
9. It is not disputed by the appellant that during the execution of the proceedings of a decree, subject matter of the decree as well as her rights flowing out of the decree were sold through the sale deed in question by her to respondent No. 1. It is also not disputed that respondent No. 1 had filed an application under Order 21 Rule 16 of the C. P. C, seeking substitution of his name in place of the decree holder -appellant in the execution proceedings. It is also not disputed that the appellant had conceded the prayer of respondent No. 1, made in the said application, in her objections and also admitted the execution of the sale deed. It is also not disputed that the Executing Court allowed the substitution by the above quoted order. It is also the accepted case that against the said order, no appeal or revision was filed by the appellant-decree holder.
10. In this view of the matter, the question arises, if the decree holder-appellant was to challenge the sale deed in question, could she challenge the same before the executing court and the further question would arise whether challenge to the said sale deed in execution proceedings would be competent under the provisions contained in Section 47 of the C. P. C. If the answer comes in affirmative, then independent suit would not lie. The provisions contained under Order 21 Rule 16 is reproduced herein below for reference: –
“16. Application for execution by transferee of decree. — Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it ; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder:
Provided that, where the decree, or such interest as aforesaid has been transferred by assignment, notice of such application shall be given to the transferor and the Judgment-debtor, and the decree shall not be executed until the court has heard their objections (if any) to its execution:
Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others.
(Explanation. — Nothing in this rule shall effect the provisions of Section 146, and a transferee of rights in the property, which is the subject-matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule.)”
The provisions contained in Section 47 of C. P. C may also be noticed. It reads as under:-
“47. questions to be determined by the Court executing decree. — (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 decree and not by a separate suit.
(2) Omitted.
(3) 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.
(Explanation 1. — For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II. (a) For the purposes of this section, a purchaser of property at a sale in execution shall be deemed to be a party to the suit in which the decree is passed; and
(b) 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.”
11. From the careful reading, the provisions contained in both the rule and Section, it is manifest that law permits a decree-holder to transfer the rights flowing out of the decree in favour of a third party. Once that person purchases the interest, he steps into the shoes of the decree-holder and can seek execution of the decree or can get himself impleaded in place of the original decree-holder for seeking the execution of the decree in a pending execution proceedings. Once the assignee of the decree claims the assignment on the strength of the assignment and claims substitution in place of the original decree-holder, the question whether assignment is valid or invalid is the question which has to be decided by the executing Court under Section 47 of the C. P. C, the same being related to the execution, discharge or satisfaction of the decree and in this view of the matter Section 47 of the C. P. C bars a separate independent suit at the behest of original decree-holder or the assignee, for the reason that after the assignment of the decree, the assignee becomes the representative of the decree-holder and Sub-section 3 of Section 47 C. P. C provides where a question arises as to whether any person is or is not a representative of a party, such question shall for the purposes of this section be determined by the Court. Therefore, in view of the provisions contained in Sub-section 3, the question whether the assignment is valid or invalid has to be determined by the Executing Court itself and that determination being covered by Section 47 of C. P. C bars the fresh suit for challenging the validity of the assignment. I am fortified in my view by the Judgment of Bombay High Court rendered in case Kundanmal Jasraj Marwadi v. Surajkuvarbai Tarachand (AIR (30) 1930 Bombay 455). In that case, an identical question arises for the determination of the Court. It was urged that although the question of the validity of the assignment can be heard by the Executing Court under Section 47 yet a suit to have the assignment declared valid or bogus is also maintainable as held in 26 Mad. 264 and AIR 1929 Lahore 51. In 26 Mad 264, it was held that a suit was maintainable at the instance of an assignee of a decree for declaration as to the validity of the assignment though the Court passing such a declaratory decree should limit itself to the declaration and should not declare that the assignee was entitled to execute the decree. It was also observed by their Lordships as follows:
“That case was decided under the provisions of Section 244, Civil P, C of 1882. But the relevant clause of that section was materially different from Sub-section (3) of Section 47, civil P. C of 1908. The present Sub-section (3) Provides :
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.
The corresponding clause in Section 244 of the Code of 1882 ran:
If a question arises as to who is the representative of a party for the purposes of this section, the Court may either stay execution of the decree until the question has been determined by a separate suit or itself determine the question by an order under this section.
Thus what was permissive under the old Code is mandatory under the present code. The reason for the change evidently is that since there was a great delay and expense in a separate suit before the execution proceeded, it is now made compulsory for the executing Court to decide the question itself. In the other case relied upon, A. I. R 1929 Lah. 51, the ruling in 26 Mad. 264 was followed, and it was held that a suit for declaration that the assignment of the decree was invalid and fraudulent was maintainable and was not barred by Section 47, Civil P. C. It was observed that there was a practical inconvenience for an executing Court to enter into an inquiry regarding the validity of the assignment. With profound respect, I think that the difference between the wording of the old Section 244 and Sub-section (3) of Section 47 in the new Code was not brought to the notice of the learned Judges who decided that case. The decision in 26 Mad. 264 being based on the old section is no longer good law, since Sub-section (3) of Section 47 makes it compulsory for the executing court to decide the question of the assignment of the decree. That question, therefore, is one falling within the purview of Section 47, Civil P. C., and, therefore, must be determined by the executing court and not by a separate suit.”
12. I am in full agreement with the view expressed by his Lordship LOKUR, J, in the above quoted judgment.
13. In the present case, the decree-holder was duly put on notice by the executing Court on the application of the respondent No. 1, the assignee, being filed for his substitution in place of the decree-holder in the execution proceedings before the Executing court but the decree-holder did not put any resistance and rather admitted the execution of the sale deed and, therefore, the executing court allowed his substitution under Order 21 Rule 16 of the C. P. C. The question determined by the executing Court was to the validity of the assignment i.e. Sale deed and, as such, separate suit to challenge the said sale deed/assignment in view of the provisions contained under Section 47 C. P.C cannot lie. This apart, suit filed by the decree-holder/plaintiff /appellant herein stood barred by the application of principles of resjudicate, as the finding of the executing Court that assignment /sale deed is valid, comes in the way of the plaintiff to maintain the fresh suit to agitate the same question. In AIR 1925 Allahabad 117, it has been held that:
“The provisions of Section 11 of the Code of Civil Procedure are not expressly made applicable to execution proceedings, but the principles are applicable and if a point has been directly or by implication decided in any particular execution proceedings the point cannot be raised subsequently.
The transferee of a decree applied under Order 21, Rule 16 for the substitution of his name, a definite order of substitution of his name was passed by the executing Court. Lateron the judgment-debtor applied to the Court, that the money deposited by him may not be paid to the decree-holder on the ground that the decree-holder was not a rightful transferee. This application was not granted.
Held, that under the circumstances the question of the validity of the transfer of the decree was resjudicata and could not be re-agitated.
Per Mukherjee, J- It was incumbent on the judgment-debtor when he received the notice of the application for execution made by the assignee of the decree-holder to have come forward and raised any objection that he may have had to the execution of the decree by the assignee.”
14. Therefore, in the present case, the order of the Executing Court through which the respondent No. 1 was allowed to be substituted in place of decree-holder on the acceptance of the execution of the sale deed by the decree-holder, the principles of resjudicata are invited barring subsequent challenge to the validity of the sale deed. Therefore, learned Tiral Court was right in its view to hold that the suit of the plaintiff subsequent to the passing of the order by the executing Court was not maintainable. Therefore, for the reasons stated above, there is no legal or factual infirmity in the order impugned passed by the learned Trial Court and the appeal, as such merits dismissal. Dismissed.
