C.B.Bhargava, J. - (1.) This is an appeal by the decree-holders against the decision of the learned District Judge, Bharatpur dated 15th December, 1953 affirming the order dated 20th July, 1953 passed by the learned Civil Judge, Dholpur.
(2.) It appears that Dhaniram, Sital Prasad and Ayodhya Prasad ancestors of the appellants obtained a decres on 25th February, 1924 for a sum of Rs. 3039/11/3 against one Talib Hussain in whose place the names of the present respondents have been substituted as his legal representatives. In execution of the decree some properties were auctioned and out of the sale proceeds the decree holders were paid Rs. 9041/4/3. The decree was declared satisfied and the execution proceedings were struck off. On 27th January, 1953 respondent No. 1 made an application before the executing court that a sum of Rs. 1665/86 in excess of the amount due under the decree had been wrongly paid to the decree-holders which may be refunded to him. The decree-holders raised objections against this application but the learned Civil Judge overruled those objections and ordered that Rs. 1309/-/6 be refunded to the judgment-debtor which has been paid in excess. On appeal the learned District Judge, Bharatpur, affirmed the said order and hence this second appeal.
(3.) It has been contended in this Court that (i) as the decree had been fully satisfied and the execution case struck off the executing court had become functus officio and had no jurisdiction to entertain the judgment-debtors' application which did not fall under Section 47 C. P. C. (ii) the judgment-debtor was estopped from raising this question on the principle of constructive res judicata as he had failed to raise it at an earlier stage of the execution proceedings. (iii) no proper enquiry was made by the executing court to find out as to what amount had been paid in excess of the decree.;