Decided on December 13,1965

AMAR NATH Appellant
DHARAM CHAND Respondents


- (1.)THIS appeal purports to be an Execution First Appeal by decree-holders. The appeal is directed against an order of the learned Additional Civil Judge, Agra, allowing an objection under O. XXI, R. 36, C.P.C., and S. 151, C.P.C.
(2.)THE dispute between the parties relates to certain premises at Agra. The building was jointly owned by Parma Nand, Smt. Kamla Devi and Basdeo. Parma Nand and Smt. Kamla Devi owned one-half share in the premises; while the other one-half share was owned by Basdeo. Parma Nand and Smt. Kamla Devi mortgaged their one-half share with Kanhaiya Lal and Darka Prasad. They executed a rent note in favour of the mortgagees. The mortgagees filed suit No. 13 of 1954 to recover arrears of rent from Parma Nand and Smt. Kamla Devi, and for partition of one-half share in the premises. The suit was decreed in 1956. Basdeo died. His sons and daughters applied for execution of the partition decree by separating their one-half share in the premises. There was request for erection of a partition wall for this purpose. Dharam Chand filed the objection under O. XXI, R. 36 on the ground that he was tenant of a portion of the building, and he could not be disturbed. That objection was allowed by the learned Additional Civil Judge, Agra. He directed that execution must be carried out in accordance with the provisions of O. 21, R. 36, C.P.C.
Mr. S.D. Agarwala appearing for the respondent No. 1 raised a preliminary objection that the order, dated 29-3-1962 is not appealable. He pointed out that an order under O. XXI, R. 36, C.P.C. has not been made appealable under O. 43 of the C.P.C. On the other hand, Mr. A.K. Kirty appearing for the appellants urged that the impugned order amounted to a decision under S. 47, C.P.C., and was, therefore, appealable as a decree. It is, therefore, necessary to ascertain whether the impugned order amounts to a determination of a question under S. 47, C.P.C. Sub-Section (1) of S. 47, C.P.C. states :-

"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. The matter decided by the lower Court certainly related to the execution of a decree. The question remains whether that was a matter between parties to the decree or their representatives. It was conceded for the appellants that Dharam Chand was not a party to suit No. 13 of 1954. But Mr. A.K. Kirty urged that since Dharam Chand claims to be a tenant, he must be deemed to be a representative of one of the parties. The suit was filed in the year 1954. The evidence on the record indicates that Dharam Chand was in possession as a tenant at least from the year 1951. Thus, his tenancy was prior to the institution of suit No. 13 of 1954.

(3.)UNDER S. 47, C.P.C. the term "representative" includes a transferee of the interest of a party whether by assignment, succession or Otherwise, if that party is bound by the decree. Where the transfer is made by a party before the institution of the suit, the transferee cannot be deemed to be a representative of the party for purposes of S. 47, C.P.C.

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