A suit challenging the validity of a decree for possession is not barred by Sections 11 and 47 of the Civil Procedure Code, as such objections cannot be raised in execution proceedings under Section 47.

Raj Kishore Prasad, J.

1. The point raised in this second appeal does not seem to be covered by any decision of this Court, and at least none has been brought to my notice, which is directly on the point.

2. The only point which has been argued by Mr. Eaidyanath Jha, appearing for the defendants-appellants, is that the suit of the plaintiff was barred both under Sections 11 and 47, Civil P. C.

The facts may briefly be stated thus: The plaintiff-respondent brought a suit for a declaration that her interest in the disputed property was not affected either by the certificate sale, or by the decree for possession passed in the title suit of defendant 1 appellant. Her case was that her husband Rahim Bux got settlement of the suit land sometime in 1929, and shortly after that he transferred that land to her in lieu of her dower debt, and put her in possession of the same, and since then she was in possession of this property. Subsequently a certificate proceeding (certificate case No. 168 of 1940-41) Was started at the instance of the Purnea Khas Mahal against Rahim Bux. In that certificate proceeding the disputed property was put up to sale as being the property of Rahim Bux, the certificate debtor, and it was purchased by defendant 1 at that certificate sale. In this certificate proceeding admittedly the plaintiff was not a party.

Defendant 1 thereafter in 1945 filed a title suit (T.S. 84 of 1945) only against Rahim Bux, the husband of the plaintiff, and got an ex parte decree against him for his eviction from the land in suit. This suit was a suit for possession, and defendant 1 got a decree for possession against Rahim Bux only, and in execution of that Decree for possession defendant 1 got possession on 27-4-1947 by ejecting the plaintiff.

The plaintiffs case, therefore, was that as she was in possession of the property from 1929 on transfer from her husband in lieu of her dower debt, Rahim Bux had no interest in the land, either at the time when the certificate proceeding was taken out, or when the suit for possession was brought by defendant 1, and, therefore, the sale, as well as the decree for possession, were not binding on her. The suit of the plaintiff was contested by defendant 1 on various grounds. One of such grounds was that the suit was barred by the provisions of Sections 11 and 47, Civil P. C.

3. The trial Court overruled all the objections of the appellants, and held that the sale, as well as the decree, were not binding on the plaintiff, and that she had title to the disputed land since 1929, and since then she was coming in pos- session, and as such she was not bound by the decree passed in Title Suit 84 of 1945. On these findings it decreed the suit..

4. On appeal by the defendants, the Court of appeal below affirmed the decision of the trial Court, and dismissed the appeal of the defendants. The learned Subordinate Judge, who decided the appeal, found that the certificate sale, or the delivery of possession taken out in the title execution case, could not affect the interest of the plaintiff, and she was not bound by those proceedings, and, therefore, her interest was not affected by either.

5. It may be stated here that when the decree for ejectment of Rahim Bux, obtained against him by defendant 1, was under execution, the sole judgment-debtor, Rahim Bux, died, and in his place the present plaintiff, as the legal heir of her Husband, was substituted in his place.

On these facts it is contended by the appellants that the present suit of the plaintiff is barred both under Sec.11 and Sec. 47, Civil P. C., because the grounds, which have now been taken in the present suit, could have been, and ought to have been taken by her, in the execution proceeding under Sec. 47 of the Code, when she was substituted as legal representative of her husband in the execution proceeding, and, therefore, her omission to take these objections, operated also as constructive res judicata in the present suit.

6. Mr. B. P. Sa