AMAR NATH AND OTHERS Vs. DHARAM CHAND AND OTHERS

JUDGEMENT

(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 Sled suit No. 18 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 song 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. Agawala appealing for the respondent No. 1 passed a preliminary objection that the order, dated 29 -3 -1962 is not appeal able. He pointed out that an order under O. XXI, R. 36, C.P.C. has not been made appealable under O. 13 of the C.P.C. On the other hand, Mr. A.K. Kirty appealing 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.

(3.) UNDER S. 47, C.P.C. the term "representative" includes a transferee of the interest of a party whether by assignment, succession of 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.