The main legal point established in the judgment is the interpretation of the term 'party' in the context of S.47 of the Code of Civil Procedure, and its application to the status of the defendant in challenging the execution of a decree.

1. The question for consideration in this petition is whether a defendant against whom no relief is claimed, or granted by a decree, is a "party" to the suit within the meaning of sub-section (1) of S.47 of the Code of Civil Procedure. The question arises out of the facts stated in paragraph No. 2 below.

2. The petitioner, Francis, was defendant No. 3 in O.S.No. 73 of 1982 instituted by Joseph Scaria, the plaintiff-respondent. A decree for specific performance of contract of sale dated 16-2-1976, was made on 22-12-1984. The decree was only against the defendant No.1 a sister of the plaintiff. The defendant No. 2 was sued as an agent of the defendant No.1 The decree directed the defendant No.1 to execute conveyance of the suit property upon the plaintiff depositing the consideration.

In his written statement, Defendant No. 3 made no claim to the property in suit and alleged that he was unnecessarily joined as defendant. The plaintiff alleged that the defendant Nos. 2 and 3 were committing waste at the instigation of the defendant No. 1.

The decree was executed and the land measuring 1 acre 5 cents delivered to the plaintiff on 22-9-1990.

The petitioner herein filed two Execution applications. E.A.No.1354 of 1990 was for setting aside delivery of the property to the plaintiff. E.A.No.1300 of 1990 was for measuring and demarcating the property with the help of a surveyor. The substance of his case is that his property, which was not subject matter of the suit, was taken possession of in execution of the decree. The learned Principal Sub Judge, Kottayam, dismissed both applications by a common order dated 4th January, 1991. In his view, the applications were not competent under S.47 of the Civil Procedure Code as a property delivered in execution, was not subject matter of the suit and that the petitioner should file a separate suit. The petitioner impugns this order.

3. Under sub-section (1) of S.47 of the Code of Civil Procedure (hereinafter referred to as the Code) all questions arising between "the parties to the suit in which the decree was passed" 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. Two essential ingredients of sub-section (1) of S.47 of the Code are: (i) the question, like the one raised in this petition, is a question relating to the execution discharge or satisfaction of the decree and (ii) the question has arisen between the parties to the suit in which the decree was made.

4. This is a case in which the defendant No. 3 complains that the property in excess of what was decreed by the court has been taken possession of in execution of the decree. It is well established that where judgment-creditor, in execution of the decree, takes possession of property in excess of what is granted by the decree, the question, is one relating to execution, discharge or satisfaction of the decree. (Andru v. Moidu, 1965 KLT 51, Merla Ramanna v. Nallaparaju, AIR 1956 SC 87 and Gopalakrishna Kamath v. Bhaskar Rao, 1988 (2) KLT 352).

5. There is thus no doubt that the question about the correctness of delivery of possession of the property of the defendant No. 3 which was not subject matter of the suit and decree, relates to execution, discharge or satisfaction of the decree. But in order to fall under sub-section (1) of S.47 of the Code and exclude the right to file a suit, the question must be shown to arise "between the parties to the suit in which the decree was made." In other words, the defendant No. 3 must be shown to have been a party to the suit in which the decree was made. This is what the Supreme Court laid down in Ramanna v. Nallaparaju (Ramanna v. Nallaparaju, AIR 1956 SC 87). The question then is as to the meaning of "party" to a suit. There are proper parties, necessary parties, formal parties or misjoined parties. Is every person joined and described as a defendant, a "party" for the purpose of S.47? Or is