- (1.) THIS is the plaintiffs' appeal against the appellate decree of Mr. Tribeni Prasad, Civil Judge, bahraich dated 22-7-1944.
(2.) THE plaintiffs stated that more than 20 years before the date of the suit, their father Mata Din and his five sons including 4 plaintiffs and defendant 2 Misri Lal, had a private partition of their property whereby their father gave up all his interest in family property which accordingly was equally divided between 5 sons. In 1920, defendant l fraudulently obtained a mortgage-deed from their father and their brother Misri Lal, defendant 2, in respect of the property in list B (NOS. 243, 275c) and that this mortgaged property has no connection whatsoever with the property in list A (NOS. 235, 257, 287 and 288 ). On the basis of this mortgage-deed, defendant 1 filed a suit for sale in May 1937. In this suit, the plaintiffs as their father was dead, were impleaded as his legal representatives. The plaintiffs filed written statement claiming paramount title in respect of 4/5ths of the mortgaged property. No issue was, however, framed on this paramount title. The suit was decreed in October 1937 and an appeal against the preliminary decree was dismissed on 31-3-1938. A final decree was obtained in 1941 and in execution of the decree the plaintiffs objected under Section 47, Civil P. C. Their objection was dismissed in 1942. The plaintiffs alleged that they feared that the executing Court might sell their property thinking that the property in lists A and B was the same, that in any case even if it be so, they had their right of ownership in respect of 4/5ths share in the property and thus it is not saleable in execution of the mortgage decree. They accordingly prayed for a declaration that the properties in lists A and 33 are entirely different and that in any case they have 4/5ths share in the properties in the lists A and B and that it cannot be attached or sold in execution of the mortgage decree. The suit was contested on various grounds and one of them with which we are concerned now in appeal was that the claim of the plaintiffs could have been decided only under Section 47, civil P. C. , and a separate suit, therefore, was not maintainable. The learned trial Court thought that the claim of paramount title sought to be agitated in suit was a question relating to execution, discharge or satisfaction of the decree between parties to the suit and therefore the present suit was not maintainable. The suit was accordingly dismissed. The plaintiffs went up in appeal and the learned lower appellate Court has also agreed with the trial Court and accordingly the appeal was dismissed.
(3.) IN the present appeal it is urged that both the Courts below have gone wrong in thinking that the claim made by the plaintiffs raised a question relating to satisfaction, discharge or execution of the decree, that in fact their claim challenged the very validity of the mortgage decree and therefore such a question could not have been decided in execution proceedings under Section 47, Civil P. C. I have heard the learned counsel and am satisfied that this contention must prevail.;