Questions relating to excess execution should be decided in execution proceedings only and not by a separate suit. The starting point of limitation for such cases should be when the right to apply accrues.

Anantakrishna Ayyar, J.

1. Certain immovable properties belonged to two brothers, Murgapillai and Adiyapada Pillai. On 30th February 1895 Muruga Pillai executed a mortgage hypothecating the properties in favour of the present defendant 1. On the foot of that mortgage the present defendant 1 instituted O.S. No. 755 of 1910 against both Muruga Pillai and Adiyapada Pillai. But the decree passed in that suit exonerated the share of Adiyapada Pillai. Subsequently Adiyapada Pillai filed a suit for partition against his brother Muruga Pillai to which suit he made the present defendant 1 also as party defendant. That suit was O.S. No. 421 of 1915.. The partition suit was compromised and a definite half share in the suit properties was allotted to Adiyapada Pillai, the suit being dismissed against the present defendant. The defendant 1, decree-holder in O.S. No. 755 of 1910, proceeded to execute his decree by bringing to sale the entire lands. Adiyapada Pillai naturally intervened and objected and claimed exoneration of his share, namely, the eastern half of S. No. 272 allotted to him by the final decree in the partition suit. Though the partition decree was passed on a compromise between the brothers only and though as far as the present defendant 1 was concerned the order was that the suit be dismissed as against him, yet the Court ordered that Muruga Pillais western half alone should be sold, and that defendant 1 was not entitled to sell the share of Adiyapada Pillai in execution of the decree in Suit No. 755 of 1910. When such an order was passed by the Court defendant 1 decree-holder in O.S. No. 755 of 1910 dropped further proceedings in execution, and had his execution application dismissed on 12th April 1917. Subsequently it would seem that defendant 1 again applied by means of a fresh execution petition to have the entire lands sold in execution of his decree in O.S. No. 755 of 1910. The property was sold and he himself became the purchaser under Ex. 4, dated 8th January 1918. In execution of the sale certificate he applied for and obtained delivery of the land including the eastern half of the land: vide delivery receipt Ex. 5, dated 7th September 1918. It is seen with reference to this Ex. 5 that it was only a symbolic delivery and not delivery of actual possession after removing the person in possession.

2. Adiyapada Pillai sold his rights in the eastern portion of the suit lands to the present plaintiff under Ex. A dated 26th June 1919. The suit which gave rise to this second appeal was instituted by the plaintiff as the vendee from Adiyapda Pillai under Ex. A alleging that the defendant obstructed him in July 1919 when he went to take possession of the properties purchased by him.

3. The main plea raised by defendant 1 was that a separate suit does not lie and that all questions relating to excess delivery in execution of the decree in O.S. No. 755 of 1910 to which Adiyapada Pillai was a party should have been settled by proceedings taken under Section 47, Civil P.C. The learned District Munsif overruled that contention and went into the merits of the plaint allegations, holding that a separate suit lay in the circumstances of this case. On the merits he passed a decree in favour of the plaintiff. Defendant 1 preferred an appeal to the lower appellate Court along with his sons, the other defendants in the case. In the lower appellate Court the question was again raised that the present suit is not maintainable having regard to the provisions of Section 47, Civil P.C. The lower appellate Court upheld that contention of the defendant, and I think it was right on that point. Section 47, Civil P.C., is clear that all questions relating to execution discharge or satisfaction of a decree should be decided by proceedings under Section 47, Civil P.C., and not by a separate suit.

4. The question of excess delivery relates to execution. That has been held by this High Court even in a very early case reported in Muttuvelu Pillai