The main legal point established was that the application under section 47, Civil Procedure Code was not maintainable during the pendency of final decree proceedings due to the absence of an executable decree.

Headnote:
Partition - Execution of Decree - Application under section 47, Civil Procedure Code - Preliminary decree for partition and separate possession - Dismissal of application as not maintainable under section 47, Civil Procedure Code - Final decree proceedings - Executable decree
Fact of the Case:

A preliminary decree for partition and separate possession of certain properties was passed. During the pendency of the final decree proceedings, applicants filed an application under section 47, Civil Procedure Code to delete certain properties from the execution of the decree on the ground that they had purchased those properties. The trial Court dismissed the application as not maintainable under section 47, Civil Procedure Code.
Finding of the Court:

The Court found that as the matter was not disposed of and there was no executable decree, the application under section 47, Civil Procedure Code was not maintainable at that stage.
Issues: The issues involved the maintainability of the application under section 47, Civil Procedure Code during the pendency of final decree proceedings and the interpretation of 'all questions arising' in relation to the execution of the decree.
Ratio Decidendi: The Court held that as the final decree proceedings were a mere continuation of the preliminary decree proceedings and the matter was not disposed of, there was no executable decree, and consequently, section 47, Civil Procedure Code could not be attracted.
Final Decision: The decision recorded by the trial Court was confirmed, and the appeals were dismissed without any order as to costs.

JUDGMENT - V.A. MOHTA, J.:---These five appeals are being disposed of by common judgment as common question of law is involved.

2. A preliminary decree for partition and separate possession of certain properties including some field properties in Civil Suit No. 13 of 1928 was passed on 1-4-1933. During the pendency of the final decree proceedings which are not yet complete, five applicants (appellants) filed an application under section 47, Civil Procedure Code to delete certain properties from the so called execution of the decree on the ground that they had purchased those properties sometime in the year 1953. These applications were filed sometime in 1969. The trial Court by judgment dated 4th November, 1980 dismissed the application as not maintainable under section 47, Civil Procedure Code, without deciding the merits. These appeals are directed against those decisions.

3. Shri Oka, the learned Counsel for the appellants, in the first place, has contended that only because the execution was not pending, the application cannot be dismissed. Reliance was placed in support of this prosecution on (M.P. Shreevastva v. Veena)1, A.I.R. 1967 S.C. 1193. It was also contended that the words 'all question arising' include all those questions which could properly arise. In support of this proposition, reliance was placed on the decisions of this Court in (Lakhu Motiram v. Radhabai Mulchand)2, A.I.R. 1952 Bombay 438.

4. Shri Padhye, the learned Counsel for the respondents, has not fairly disputed these proposition. However, he has contended that as preliminary decree has not completely disposed of the matters in controversy and as the question raised does not relate to execution, discharge or satisfaction of the decree, there is no executable decree, and therefore, application under section 47, Civil Procedure Code, at such stage, is not maintainable. I find considerable force in the submission made on behalf of the respondents. It is obvious that final decree proceedings are mere continuation of the preliminary decree proceedings and as the matter is not disposed of, there is no executable decree and consequently, section 47, Civil Procedure Code, cannot be attracted.

5. In the result, the decision recorded by the trial Court has to be confirmed and the present appeals have to be dismissed; but under the circumstances without any order as to costs. Needless to mention that the interim stay stands automatically vacated.

Appeals dismissed.

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