Gangeshwar Prasad, J. - (1.) THIS application in revision is directed against an order dated 6 -11 -1965 passed by the Civil Judge of Bulandshahr in an execution proceeding. It appears that a money decree against the Applicants was put into execution in the court of the Civil Judge. The Applicants objected to the execution, inter alia, on the ground of limitation. The learned Judge thought that it was "a fit case which should be treated as a regular suit", and ordered the Applicants "to add the clause of valuation in his objection Under Section 47 Code of Civil Procedure within a fortnight and meanwhile pay a court -fee on it." The only reason assigned by the learned Judge for passing the above order was that the Applicants counsel said that the case would "require much time as oral evidence also has to be adduced." As the counsel for the Applicants prayed for an adjournment of the hearing of the case on the date on which the above order was passed the learned Judge also directed the Applicants to pay Rs. 25/ - as costs to the decree -holder. It is, however, the order treating the case as a suit and directing addition of a valuation clause to the objection and payment of court fee thereon that is in question before me.
(2.) I must at once say that the order under revision is entirely without jurisdiction and is based on a grievously mistaken view of the provisions of Section 47 Code of Civil Procedure. It is not disputed that the questions raised by the Applicants in the proceeding taken against them relate to the execution of the decree. Sub -section (1) of Section 47 Code of Civil Procedure, therefore, makes it imperative that the questions be determined by the court executing the decree and not by a separate suit. The learned Civil Judge appears to have been of the view that even where questions arising between the parties to the suit in which a decree was passed relate to matters mentioned in Sub -section (1) of Section 47 Code of Civil Procedure it is open to the court under Sub -section (2) of the said section to treat the proceeding as a suit. This view is patently erroneous.
(3.) SECTION 47 Code of Civil Procedure has for its object prevention of unnecessary and protracted litigation and cheap and expeditious determination of questions arising between the parties to a suit or their legal representatives in regard to the execution, discharge or satisfaction of the decree passed in that suit. It is for securing the aforesaid object that it enjoins that questions relating to the above matters shall be determined by the court executing the decree and also imposes a bar against the determination of such questions by means of a separate suit. Sub -section (2) of Section 47 Code of Civil Procedure has not been enacted as a proviso to Sub -section (1) and does not have the effect of overriding its mandatory requirement. It is, on the other hand, intended to be a supplementary provision which, while in no manner qualifying Sub -section (1) or lessening its effect, empowers the court to bring a legal action taken by a party into conformity with what has been laid down by Sub -section (1). Whether a question requiring determination is or is not one relating to the execution, discharge or satisfaction of a decree is a matter which may at times present difficulty, and the party initiating a legal action may, therefore, have been honestly mistaken in the course adopted by him. In such cases he should not be driven to the necessity of starting another kind of legal action for a determination of the same question and the court should have the power to cure the defect in the form of action chosen by him. It is this power which has been conferred by Sub -section (2) of Section 47.;