Suits challenging execution validity must arise under Section 47, CPC if a decree exists; independent suits for such purposes are barred.

1 In S. A. Nos. 1245 and 1236 of 1960 the decrees passed by the two subordinate courts in O. S. 1085/1122, accepting the claim of the plaintiff therein are under challenge; and in S. A. 1246/60 the decrees passed by the two subordinate courts accepting the claim of the plaintiff in O. S. 929/1120 are again under attack.

2 As there are two suits wherein more or less similar questions arise for consideration, I will refer to the array of parties in the course of this judgment, with reference to the position occupied by them in O. S. 1085. The other litigation is O. S. No. 929/1120. Both these litigations were finally disposed of by the learned Munsif of Quilon.

3 The circumstances under which these two litigations came to be launched may be briefly narrated. The property comprised in schedule B to the plaint in O. S. 1085/1122 belonged to one Sulaiman Kunju. He was a subscriber to a chitty conducted by defendants 1 and 2. He seems to have been subscribing for two classes of tickets in the said chitty, namely tickets A and B. On 15-9-1099 Sulaiman Kunju prized a B class ticket; and for guaranteeing the regular payments of future subscriptions, he executed a chitty hypothecation bond in favour of the foremen who were conducting the chitty, namely defendants 1 and 2, charging the plaint B schedule property. Some time later, Sulaiman Kunju instituted a suit O. S. 46/1108 in the District Court of Quilon for recovery of the paid up subscriptions in the chitty. His claim in that suit was that defendants 1 and 2 herein, who were the foremen of the chitty, had stopped the conduct of the chitty, and therefore he was entitled to get back the accounts that were paid by him as subscriptions. That claim of the plaintiff was met by the present defendants 1 and 2 by a counter claim being made by them as against the plaintiff for payment of arrears of subscription stated to be due from Sulaiman Kunju. They also took up the position that the allegation of Sulaiman Kunju that the chitty had ceased to function was absolutely false. The learned District Judge of Quilon, by his Judgment Ext. VI dated 12-2-1935/30-6-1110, dismissed the suit filed by Sulaiman Kunju and accepted the counter claim made by the chitty foremen, namely the present defendants 1 and 2. The decree passed in that suit is filed as Ext. D. It is not necessary for me to refer to the various reasons given by the learned District Judge for dismissing the suit O. S. 46/1108 by Sulaiman Kunju and accepting the counter claim of defendants 1 and 2 therein. But it is enough to note the actual nature of the reliefs granted by the learned Judge in his judgment Ext.VI.

4 In Paragraph 11 of the judgment Ext. VI, the learned District judge deals with the question as to whether the chitty foremen, namely defendants 1 and 2, are entitled to a decree for the amount due under the chitty security bond executed in their favour by the plaintiff, and if so, what is the amount due to the defendants. It must be noted here that in the earlier part of Ext. VI the learned Judge has held against the plaintiff that the chitty has not collapsed from the 17th drawing, as alleged by the plaintiff Sulaiman Kunju; and the learned Judge has also held that Sulaiman Kunju was defaulter from the 16th instalment onwards. And it was on the basis that the points arising for decision under issue No. 5 have been dealt with by the learned Judge in paragraph 11 of Ext. VI Judgment. The Learned judge is of the view that it has been established that Sulaiman Kunju is a defaulter from the 16th instalment onwards, and that the defendants have paid the necessary court fees in their counter claim for recovery of the defaulted instalments. The learned Judge has also held that the defendants are entitled to recover the arrears of subscription, as claimed by them in paragraph 12 of their written statement, from the plaintiff and from the hpotheca. The learned Judge has also stated that in his opinion it would be equitable to give the p