Execution of money decree againt legatees recognized by heirat law.

The question in this appeal is whether an appeal lay against the order of the learned Subordinate Judge of Tiruchirapalli. The facts germane to the question may be briefly narrated.

The appellant filed C.S. No. 4 of 1943 on the file of the High Court against Raja Bahadur Krishnamachariar for recovering a sum of about Rs. 59,000 towards the commission alleged to be due to him. Krishnamachariar died after the service of summons and before the date fixed for his appearance. His sons, Raju and Rangu, were added as his legal representatives. Krishnamachariar executed a Will, Exhibit P-1, whereunder among other properties, item No. 6 of the D Schedule was bequeathed to the respondents who are Raju’s sons. Raju was ex parte. Rangu, the 3rd defendant, filed a written statement denying the liability of Krishnamachariar to the appellant. Though the respondents attempted to come on record to contest the suit, this application was opposed by the plaintiff and it was dismissed by the Master. The Master held that the dispute between the legatees and the plaintiff had to be adjudicated only in a separate suit, and, therefore, they were not necessary parties. It was on this finding that their application was dismissed. Thereafter the appellant and Rangu compromised their dispute and a decree was made against Rangu on the basis of the consent memo. filed in Court and against Raju on proof of the claim. Under the decree the appellant was authorised to execute the decree against all the properties of Krishnamachari other than the share of Rangu. The said decree was transferred to the District Court, Tiruchirapalli, for execution.

On 8th August, 1945, the appellant filed E.P. No. 10 of 1945 on the file of the District Court praying for the attachment of the house in dispute. The house was attached on 3rd September, 1945. The respondents, relying upon the Will executed in their favour by Krishnamachariar, preferred a claim petition for raising the attachment. The learned Subordinate Judge who heard the application disposed of the same on an alternative basis, that is, as one made both under Order 21, rule 58, Civil Procedure Code and under section 47, Civil Procedure Code. Treating it as one made under Order 21, rule 58, Civil Procedure Code he held that the claimants had some interest in the house attached on the date of the attachment and that on that date the house was not in the possession of either judgment-debtor on his own account. On that basis he came to the conclusion that the application had to be allowed and the attachment raised.

Approaching the question from the standpoint of section 47, Civil Procedure Code, he posed the following question for decision, “whether the house is liable to be attached and sold in execution of the decree passed in C.S. No. 4 of 1943”. He held that it was not liable to be sold in execution of the decree. In the result on the said footing also he dismissed the application. The appellant filed a suit for setting aside the said order under Order 21, Rule 63, Civil Procedure Code, and it is represented to me that the said suit was dismissed. The above appeal was filed prior to the institution of that suit against the same order.

The learned counsel for the respondents raised a preliminary objection mat no appeal lay against the order of the lower Court. The answer to that question would depend upon the provisions of the Civil Procedure Code governing the right of appeal. Under section 96 of the Civil Procedure Code an appeal shall lie from every decree passed by any Court exercising original jurisdiction. “Decree” has been defined by section 2(2) so as to include the determination of any question within section 47, Civil Procedure Code. Under section 47, 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