The scope of enquiry under Section 47, C.P.C. is not limited to determining whether the legal representatives of the judgment-debtor were in possession of the attached properties in their own right.

JUDGMENT:- This appeal arises under the following circumstances: One Dhanalakshmi and Company, Madurai, instituted a suit (O.S.101 of 1959) against one S.R. Subramania Pillai for recovery of Rs.14,800 and odd on foot of an agency agreement dated 1-9-1957. This suit, which was instituted on 1-10-1959, was decreed on 21-9-1961. Subsequently, the judgment-debtor died and his wife, Parvathi Ammal and son, S.T. Ramalinga Pillai and a few others were impleaded as his legal representatives. In E.P.374 of 1963, the decree-holder attached the properties of the judgment-debtor on 8-9-1963. The widow and the son of the judgment-debtor, who had already been impleaded as legal representatives, filed an application in E.A. No.209 of 1968 under Section 47, C.P.C. claiming that they had become entitled to 3/4 share in the attached property by virtue of an earlier partition and that the attachment in respect of their 3/4 share should be raised. The basis of their plea was that under a 'Vagathadi' (Partition list) of 1952 a family partition had taken place whereby 1/4 share in the properties attached was allocated to Subramania Pillai, the judgment-debtor, and the remaining 3/4 share was allotted to his wife and sons. Neither the month nor the year of the 'Vagathadi' appears to have been given by the claimants, though the year of the partition list was given as 1952. It was further alleged that in pursuance of the said partition list, a registered partition was effected on 1-3-1960, that is to say, after the date of the institution of O.S.101 of 1959 and before the date of the decree therein. The decree-holder raised the following objections to this petition:-

(1) that the claimants had preferred two such applications previously and had allowed them to be dismissed for default and consequently they were barred by res judicata from filing E.A. No.209 of 1968;

(2) that the registered partition deed dated 1-3-1960 was nominal and that the partition of 1952 was neither true nor valid; and

(3) that, in any event, the wife and son of the deceased judgment-debtor were piously obliged to pay the decree debt, which was tainted neither with illegality nor with immorality.

2. The learned District Munsif of Ambasamudram misunderstood the entire scope of the enquiry. Evidently, he appears to have thought that the petition tiled by the legal representatives of the judgment-debtor was in the nature of a summary application under Order 21, Rule 58, C.P.C. and that the only matter he was called upon to consider was whether the petitioners were in possession of the attach ed properties in their own right. Upon the evidence, he recorded a finding in their favour and allowed the petition. It is a well settled proposition of law that when the legal representative of a judgment-debtor raises a question of the type that has been raised, it must be adjudicated upon under Section 47, C.P.C. which prescribes, as follows:

"47(1). All questions arising between the parties to the suit in which the decree was passed, or their representatives, 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."

Clause 2 of that section provides the court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees. It is also clear from Section 2(2), C.P.C. that the determination of any question within S.47, C.P.C. is a decree and, as such, appealable. The executing court erred not only in misunderstanding the scope of the enquiry but also in failing to frame the following points which arise for determination-

(1) Whether the partition of 1952 pleaded by Parvathi Ammal and S.T. Ramalingam Pillai is true and valid, and

(2) Whether, in any event, Parvathi Ammal and S.T. Ramalingam Pillai, are bound under the doctrine of pious obligation to discharge