The main legal point established is that when property not covered by the decree is delivered in execution of the decree, the proper remedy for the judgment debtor is to file an application under S.47 C.P.C. and not a separate suit.

1. The Second defendant (one of the judgment debtors) is the revision petitioner.

2. The petitioner filed E. A. 404 of 198o complaining to the execution court that while delivering the property in execution of the decree obtained by the respondent, certain movables belonging to him were also delivered wrongly and therefore he is entitled to have them delivered back to him. The executing court dismissed the application. Relevant portion of the order reads:

"The counsel for the petitioner argued that the movables delivered have not been mentioned in the decree schedule and hence those articles should be re-delivered. Counsel for the counter-petitioner argued that since the E. P. has already been closed, the petition is not maintainable and the proper remedy of the petitioner is to file a suit for re-delivery of the articles or the damages thereof, in view of the decision reported in Panchoo Jolaha v. Muhammad Ismail, A.I.R. 1949 Allahabad 203. On a

perusal of the E. P. the articles mentioned in this petition have also been mentioned and the petitioner/2nd judgment debtor has not filed any objection regarding that while the E. P. was pending. Now the delivery has already been effected and E. P. closed. S.47 C. P. C. can be invoked only when the E. P. is pending. Therefore, this application is not maintainable and the same is accordingly dismissed".

3. That the movables described in the report of the amin have been delivered to the respondent-decree holder in execution of the decree, is beyond challenge. That the decree did not permit delivery of these movables is beyond dispute. The question therefore is whether the movables delivered to the decree holder in execution of the decree can be said to be delivered "in excess of the decree". If the delivery is found to be in excess of the decree, the petition is maintainable under S.47 C.P.C. because it relates to the execution, discharge and satisfaction of the decree.

4. The learned counsel for the respondent relying on Panchoo Jolaha v. Mohammed Ismail (AIR. 1949 Allahabad 263), Sm. Mana Devi v. Malki Ram (AIR. 1961 Allahabad 84), Abdul Mokit v. Abdul Rashid (AIR. 1929 Patna 391) and Hiyaz Bi v. Amdumiyan (AIR. 1949 Nagpur 375) argues that the remedy of the petitioner, if any, is to institute a suit for recovery of the movables delivered to the decree holder in execution of the decree. The question considered in these decisions pertains to the claim of a judgment debtor for damages resulting from acts done under cover of execution proceedings. In such cases it cannot be disputed that the remedy is not to approach the executing court under S.47 C.P.C. but to institute a separate suit for the recovery of damages because the question is not one relating to the execution, discharge or satisfaction of the decree but is one outside the decree.

5. But that is not the case where property not included in or covered by the decree is delivered in execution of the decree. If property not covered by the decree is delivered in execution of the decree, there arises a situation which, in law is called "action in excess of the decree". In such cases the proper remedy for the judgment debtor to recover the property delivered in excess of the decree is by an application under S.47 and not by a separate suit. I am fortified in this view by a decision of the Supreme Court in Ramanna v. Nallaparaju (AIR. 1956 SC. 87). The Supreme Court has stated thus:

"It is well settled that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application under S.47, C.P.C. and not in a separate suit." See also Ramabhadra v. Kadiriyasami (AIR. 1922 PC. 252). Here it has been stated as follows:

"A mortgagor is at liberty by appropriate proceedings under S.47, C.P.C. to liberate, from the effects of sale, land which is by mistake included in a mortgage decree and sold