VITHAL LAXMANNAIK MALGAVKAR Vs. MAHADEV RAGHUNATH KONDKAR

JUDGEMENT

(1.) One Lingo got a decree in Regular Suit No. 183 of 1916, whereby it was ordered that the first defendant and the plaintiff should take possession of various properties from the other defendants. After the decree had been passed Lingo sold his interest in some of the properties of which possession was directed to be given to him to the present appellants, Lingo thereafter made an application for execution of his decree. His purchasers were not parties to that application. An order appears to have been made in execution under Order XXI, Rule 35(1), but the Subordinate Judge held that action ought to have been taken under Order XXI, Rule 36, which he directed should be done, and that the possession given under Order XXI, Rule 35(1) should be set aside.

(2.) The appellants sought to appeal from that order to the First Class Subordinate Judge, with appellate powers, and an issue was raised whether the appellants had any locas siandi to appeal. The learned Judge held that they had not, and in my opinion he was right. A person, who is not a party to a proceeding in the lower Court cannot appeal from the decree or order passed, unless he can prove that he has such a right under the provisions of the Code. Reliance was placed by the appellants on Secs.47 and 148 of the Civil Procedure Code. Section 47 merely enacts that certain questions arising between the parties to a suit in which a decree has been 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. That section, therefore, does not touch the point we have to deal with.

(3.) Section 146 of the Code says: Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.