S.K.Das Gupta, J. - (1.) This is an appeal from a decision of the District Judge, Murshidabad, dated 16-6-1951, reversing a decision of the Subordinate Judge, Murshi-dabad, dated 31-8-1950.
(2.) The matter arises in this way: One Hindu Bashini Biswas and Kiran Bala Biswas purchased the properties which are mentioned in schedule Ka to the plaint filed in the suit out of which this appeal arises. Kiran Bala Biswas purchased the properties mentioned in schedule Kha in a rent execution case being Case No. 51 of 1950 on 28-4-1910. Kiran Bala's husband was one Ashutosh. He had a son by Kiran Bala named Sachinandan and two daughters named Kundalata and Kanak-lata. After the death of Kiran Bala, the said Ashutosh married again and got a son by his second marriage named Nitai. The said Nitai has not been heard of, for a long time but his wife's name is Binapani and he has a son by the name of Amalendra. After the death of Kiran Bala, her property was inherited by Sachinandan and her two daughters Kundalata and Kanaklata and on Sachinanda's death his share in the properties inherited by him from Kiran Bala went to Ashutosh. Ashutosh executed a mortgage, of the properties mentioned in the Kha schedule on behalf of himself and his minor children Kundalata and Kanaklata. After Ashutosh's death the mortgagee instituted a suit against his heirs namely Nitai and also against Kundalata and Kanaklata. The said suit was decreed against Nimai and dismissed against Kundalata and Kanaklata, the court having held that the minors are not bound by the said mortgage. In execution of this decree, Kundalata was dispossessed of her properties although the suit against her was dismissed. Thereupon she filed an application under Order 21, Rule 100, Civil P. C. for being restored to possession. The said application was successful in part that is, in respect of some of, the properties belonging to Kundalata, but the properties which were the subject matter of the Ka schedule and Kha Schedule were not restored to her. Thereupon the said Kundalata filed the Present suit under the provisions of Order 21, Rule 103 of the Code. In the said suit she complained of her dispossession not only with respect to Kha sche- dule property but also with respect to the Ka schedule properties. Both the courts found that she had title to the extent of l/3rd share in Ka schedule properties and 2/3rd share in Kha schedule properties. The trial court decreed the suit in her favour. Against that decision, there was an appeal and the lower appellate court reversed the decree on the ground that the application which she made under Order 21, Rule 100 of the Code was really an application under Section 47 of, the Code and that being so, the only remedy that was left open to the said Kundalata was to prefer an appeal against the said order and no suit would lie in respect of the same. The said court inter alia observed as follows: "It has been Urged that this suit is barred under section 47 of the Code of Civil Procedure. It is said that as the plaintiff was a party to the mortgage suit, the application which the plaintiff filed under Order 21, Rule 100, O. P. C. was really an application under Section 47, C. P. C. and the order passed in the application which is not appealed against is conclusive and the present suit is barred in view of the provisions of section 47, C. P. C. I think this contention is well founded. In the mortgage suit the plaintiff was a party .....But though the suit was dismissed against the plaintiff yet the plaintiff was a party to the suit as contemplated by Section 47 of the Code of Civil proce-dure. It is clear from Section 47, Civil P. C. that 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 and not by a separate suit. The question as to whether the plain-tiff was dispossessed in the course of the delivery of possession was a question relating to execution, discharge or satisfaction of the decree passed in the mortgage suit. Therefore the objection filed by the plaintiff regarding delivery of possession was really an application under Section 47. Civil P. C. which she termed it as one under Order 21, Rule 100 of the Code. Thus though the order in the application filed by the plaintiff was passed on the footing that it was an application under O, 21, Rule 100, C. P. C. the plaintiff is not entitled to bring this separate suit for establishment of her title to the disputed lands and challenge the order in question passed under Order 21, Rule 100, C. P. C. I find that this suit does not He and is barred by Section 47, C.P. C." In effect the learned Judge held that the application in question being really an application under Section 47, Civil P. C., no suit under Rule 103 of Order 21 of the Code would lie. On this view of the matter, the lower appellate court reversed the decision of the trial court and dismissed the suit. It is against that decision of the lower appellate court that the present appeal has been filed.
(3.) Mr. Mitter appearing on behalf of the appellant contended before us that the view taken by the lower appellate court was entirely wrong. He further contended that his client was entitled to make an application under Order 21, Rule 100 of the Code, she not being a judgment-debtor and if tnat be so, then she is also entitled to file a suit under Order 31, Rule 103 of the Code to establish her right, which she claims, to the present possession of the property but which has not been given to her in the application made under Order 21, Rule 100 of the Code.;