A court executing a mortgage decree which directs the sale of a specific property cannot allow a judgment-debtor or his legal representatives to object that such a decree is not capable of execution.

1. In the suit out of which this appeal arises the plaintiff alleged that in the year 1929 her husband Sheikh Rahim Bux, seemed settlement of 10 kathas of land, bearing Municipal holding No.102/1 of Purnea Municipality. In the same year he transferred the land to the plaintiff in lieu of her dower debt fixed at Rs.99/- and put her in possession of the same. Later on defendant No.1 filed a certificate case against Rahim Bux and in execution of the certificate defendant No.1 purchased the and for a sum of Rs.17/-, The plaintiff alleges that she was not impleaded as a party in the certificate proceeding. Defendant No.1 also filed a title suit, being Title Suit Wo.84 of 1945, against Rahim Bux and obtained an ex parte decree against him for his eviction from the land in dispute. It appears that while the decree for ejectment was being executed by defendant No.1, Rahim Bux died and in his place the plaintiff was substituted as the legal representative of her husband. The plaintiff has brought the present suit for a declaration of her title and recovery of possession over the disputed land. The case of the plaintiff is that the certificate proceeding was collusive and that the decree was obtained in the title suit by Sheikh Karamat AM in a fraudulent and collusive manner and so her title was not affected either by the certificate case or by the decree obtained by defendant No.1 in the title suit. The trial court and also the lower appellate court held that the case of the plaintiff was true and that the land was given to her in fieu of her dower debt and her title was not affected by the certificate proceeding or by the ex parte decree obtained by defendant No.1 in the title suit. The lower courts accordingly granted a decree to the plaintiff. When the matter came up in second appeal it was argued before the learned Single Judge that the suit was barred under Sec.47 of the Code of Civil Procedure. The argument was rejected by the learned Single Judge and the second appeal was dismissed.

2. On behalf of the defendants, who have preferred this appeal under the Letters Patent, the argument put for-Ward by learned counsel is that the suit of the plaintiff was barred by the provisions of Sec.47 of the Code of Civil Procedure, it was submitted that, after the plaintiff was substituted as the legal representative of her husband Rahim Bux in the execution proceeding, the plaintiff teught to have iaised objection with regard to her, title to the land and, since there was default on her part, the suit is barred by the principle of Sec.47 of the Code of Civil Procedure. In support of this argument reference was made to the decision of a Full Bench of the Calcutta High Court in Punchanun Bundopadhya V/s. Rabia Bibi, ILR 17 Cal 711, and a subsequent decision of the Calcutta High Court, following the Full Bench case, in Naida Bashi V/s. Rajendra Chandra, 48 Cal LJ 551. in our opinion there is no merit in the argument advanced by learned counsel for the appellants. The decision of the Full Bench in ILR 17 Cal 711, must be distinguished on the ground that in that case the court dealt with the execution of money decree and not a decree for possession of specific items of immovable property. That is the vital distinction between the line of authorities represented by ILR 17 Cal 711 (FB), and another line of authorities exemplified by Jatru Pahan V/s. Ambihajit Prasad, AIR 1946 Pat 214 and Hitendra Singh V/s. Rameshwar Singh Bahadur, ILR 4 Pat 510 : (AIR 1925 Pat 625 ). It is now settled by the latter line of authorities that the court executing a mortgage decree which directs the sale of a specific property, can-not allow the judgment-debtor or his legal representatives to object that such a decree is not capable of execution either because the judgment-debtor had no right originally to execute the mortgage bond upon the basis of which the decree has been passed, or that since the date of the mortgage decree owing to the death of the judgment