ORDER: The revision petitioners are the decree holders in E.P.No.11 of 1997 in O.S.No.139 of 1994 on the file of District Munsif Court, Virudhunagar. The first respondent/ third party filed E.A.No.51 of 1998 under Sec.47 of the Code of Civil Procedure to dismiss E.P.No.11 of 1997 on the ground that the decree is not executable. The decree-holders filed counter to the said application and oral evidence was let in on either side and documents were also filed. After hearing the parties, the learned District Munsif allowed E.A.No.51 of 1998 and aggrieved against this, the present revision is filed.

2. Heard the learned counsel of both sides.

3. The points that arise for consideration are:

(1) Whether the order passed by the Court below is proper and correct?

(2) Whether E.A.No.51 of 1998 is maintainable under Sec.47 of Civil Procedure Code?

4.Points: It is admitted that the revision petitioners/ plaintiffs filed the suit against the second respondent/ defendant in O.S.No.139 of 1994 for recovery of arrears of rent. The defendant has been described as Gurusamy and Co., Virudhunagar represented by the proprietor Kumaresan. The suit was hotly contested by the second respondent/ defendant and decree was granted in favour of the plaintiffs as prayed for on 16.11.1995. Thereafter, the decree holders filed E.P.No.11 of 1997 under O.21, Rules 35 and 36 of Civil Procedure Code to execute the decree. During the pendency of the execution petition only, the first respondent/ third respondent filed the petition under Sec.47 of Civil Procedure Code to dismiss the execution petition on the ground that the decree obtained by the plaintiffs cannot be enforced.

5. Learned counsel for the first respondent/ third party contended that the plaintiffs filed the suit against Gurusamy and Co. represented by the proprietor Kumaresan. Admittedly, Kumaresan and the first respondent herein are the sons of deceased Gurusamy. It is further stated by the learned counsel for the third party that Gurusamy and Co. is only a partnership firm and the respondents 1 and 2 are the partners. However, the plaintiffs filed the suit only against the second respondent proclaiming him as the proprietor of the said company. This being so, the decree cannot be executed against the third party.

6.Per contra, learned counsel for the revision petitioners/ plaintiffs contended that the application filed by the third party under Sec.47 of Civil Procedure Code is not maintainable under law. Sec.47 can be invoked only by a party to the suit and not by a stranger. It cannot be said that the third party is a representative of the defendant in the suit. It is settled principle of law that any partner can represent the firm. The partnership deed has not been filed by the third party into the Court to prove the contention that Kumaresan had retired from the partnership firm. The execution application is a mala fide one and the third party had been set up only by his brother, who was the defendant in the suit. There were huge arrears of rent and they were paid only after filing of civil revision petition. The decree-holder is a charitable institution and it is put to much hardship on account of non payment of huge arrears of rent.

7. Sec.47 of the Code of Civil Procedure is extracted as follows to appreciate the contentions of the parties:

47. Questions to be determined by the Court executing decree: (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.

(2) 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.

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for th

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