JUDGMENT
1. This is an appeal under Order 10 of the Letters Patent against the decision of a learned single Judge of this Court. After having heard the parties, we have come to the conclusion that the decision is correct and this appeal ought to be dismissed.
2. There is no dispute about the facts and they may be stated briefly. The defendant to the present suit obtained a decree against the firm of Chiranji Lal Babu Lal. Both parties were dissatisfied with the decree passed by the first Court and two appeals were filed. The firm of Chiranji Lal Babu Lal had been sued through Babu Lal who died after the decree of the first Court during the pendency of the appeal. No efforts were made in any of the appeals to bring the legal representatives of Babu Lal on the record. We have not been told as to what the result of the appeals was but this much is clear that the defendant to the present suit even after the decision of the appeal had some sort of a decree against the firm of Chiranji Lal Babu Lal and in execution of that decree he applied to have the names of Lachhmi Narain alias Lachhoo and Musummat Asharfi substituted in place of Babu Lal. Lachhmi Narain objected but his objection was disallowed and he was brought on the record as a legal representative of Babu Lal. There was a appeal against this decision. Subsequently the decree was transferred to Hathras for execution and some property in the hands of Lachhmi Narain as attached. Lachhmi Narain objected to the attachment of the property on the ground that it was the personal property of Babu Lal and not the property of the firm and that it had come into the possession of Lachhmi Narain by survivorship.
3. These objections were headed in the execution department by Lachhmi Narain as being under Section 47 of the Civil Procedure Code. But the heading was amended later and they were described as under Order XXI, Rule 58 of the Civil Procedure Code. The learned Munsif in whose Court the objections were filed, allowed the amendment but when the decree holder appeared to reply to the objections, he averred that the objections were really under Section M of the Civil Procedure Code. The learned Munsif, however, treated them under Order XXI, Rule 58, Civil Procedure Code, and disallowed the objections of Lachhmi Narain.
4. Lachhmi Narain then brought the present suit under Order XXI, Rule 63, of the Civil Procedure Code, and this suit in spite of the objections of the defendant, was decreed by the Courts below. The second appeal filed by the defendant was allowed by a learned Single Judge of this Court who held that the suit was not maintainable. There can be no doubt that when Lachhmi Narain made objections to being impleaded as a representative of Babu Lal, deceased, a question arose between him and the decree-holder as to whether Lachhmi Narain was pr was not the representative of the judgment-debtor and that question had to be decided under Clause (3) of Section 47 of the Civil Procedure Code. The decision of the execution Court that Lachhmi Narain was the representative of the judgment-debtor was a decision under Section 47, Civil Procedure Code, and was appealable; but no appeal was preferred by Lachhmi Narain. The position, therefore, was that Lachhmi Narain became the representative of the judgment-debtor and at the time Lachhmi Narain filed objections at Hathras when some property in his hands was attached, the objections must be deemed to have been made under Section 47 and not under Order XXI, Rule 58, Civil Procedure Code, which deals only with questions arising between the decree-holder and strangers to the decree, Lachhmi Narain himself had originally headed his objections under Section 47, Civil Procedure Code; the decree-holder all along protested that the objections were under Section 47, Civil Procedure Code, and it was Lachhmi Narain who got his objections amended, may be that the learned Munsif also thought that the objections were under Order XXI, Rule 58, Civil Procedure Code, but this does not in any way alter the nature of the objections and the decision of the learned Munsif on those objections must be deemed to be a decision under Section 17, Civil Procedure Code, against which an appeal lay and a regular suit is not maintainable.
5. Reliance was placed by Lachhmi Narain's Counsel on the case of Ram Narain Kishen Payal v. Ram Prasad 130 Ind. Cas. 12 : 52 A. 964 : (1930) A.L.J. 913 : A.I.R. 1931 All. 65 : Ind. Rul. (1931) All. 328, but the facts of that case were entirely different, because there nobody was brought on the record as the legal representative of the judgment-debtor, whereas in the present case Lachhmi Narain, the plaintiff, was brought on the record as the legal representative of the deceased Babu Lal and from that stage onwards all questions arising between Lachhmi Narain and the decree-holder in connection with the execution, satisfaction or discharge of the decree must be, deemed to be questions arising and capable of determination under Section 47, Civil Procedure Code.
6. It was next contended that as Babu Lal died during the pendency of the appeal and no legal representative was brought on the record, the appellate decree must be considered to be a nullity. On this point as stated before learned Counsel for Lachhmi Narain has not been able to inform us as to whether the decree of the trial Court was modified in any way by the Appellate Court or not and it may be that even if the decree of the Appellate Court be deemed to be a nullity the decree of the trial Court remains good, and in the present state of the record, it is not possible for us to say as to whether the decree-holder is trying to execute any decree other than what was given by the trial Court. There is, therefore, no force in this contention. The main argument of the plaintiff-appellant, however, is that the Court treated the objections of Lachhmi Narain in the execution department as objections under Order XXI, Rule 58, Civil Procedure Code, and therefore, Lachhmi Narain is entitled to file a suit under Order XXI, Rule 6, Civil Procedure Code. Learned Counsel relies on the case of Nasir Khan v. Itwari 72 Ind. Cas. 905 : 45 A. 669 : 21 A.L.J. 667 : 9 O. & A.L.R. 645 : A.I.R. 1924 All. 114. It was held there that-
The right of appeal does not depend on what a Court ought to have done but on what it actually did and where therefore, a Court dismisses an appeal categorically on the merits an appeal will lie although the Court ought in the circumstances to have dismissed it not on the merits but for default of appearance by the appellant.
7. This is really a converse case and it does not help the appellant. This is only an authority for the proposition that where the Court under a mistake as to the nature of the proceedings before it decides the matter in a particular manner and if that decision by reason of the Court deciding it in a particular manner is appealable then an appeal would lie. If for instance an objection which should really be an objection under Order XXI Rule 5, is filed as an objection under Section 47, Civil Procedure Code, and the Court decides the objections, treating them under Section 47, Civil Procedure Code, then an appeal would lie although the objections should really have been treated under Order XXI, Rule 58. In the present case the appellant wants us to hold that, because the execution Court treated the objections under Order XXI, Rule 58, a regular suit is maintainable by the aggrieved party. This cannot be done because the right of suit depends upon the true nature of the investigation that was conducted in the execution department and there can be no doubt that the objections of Lachhmi Narain could only be under Section 4V, Civil Procedure Code. In Madho Bibi v. Hazari Mal Marwari 115 Ind. Cas. 695 : A.I.R. 1929 Pat. 141 : 10 P.L.T. 95 : 8 Pat. 717 it was held that:
The nature of the claim preferred will be determined by the character of the claimant and not by the label used by the party and the jurisdiction to try the claim cannot also be affected by a mere misdescription of the character of the claim.
8. The same view was taken by the Madras High Court in Bullayya v. Subbayya 140 Ind. Cas. 779 : A.I.R. 1933 Mad. 130 : Ind. Rul. (1933) Mad. 46) where it was held that:
In considering whether an application is under Section 47 or not, the Court must examine the substance of the application to find out its true nature and should hot be guided solely by the heading given to it by a party.
9. Similar observations occur in the case of Maung Ba v. Maung Tha Yan 135 : Ind. Cas. 328 : A.I.R. 1931 Rang. 317 : Ind. Rul. (1932) Rang. 4 and Jhunni Lal v. Natha Lal 87 Inmd. Cas. 287 : A.I.R. 1925 All. 594 : L.R. 6 A. 278 Civ. it was held that:
Where a person was brought upon the record as a representative of the deceased judgment-debtor and he set up his own right to the property and filed objection under Officer Order XXI, Order 58, the objections must be deemed to have been filed under Section 47, Civil Procedure Code.
10. We are, therefore, clearly of the opinion that the objections of Lachhmi Narain must be deemed to have been decided tinder Section 47, Civil Procedure Code.
11. It was then argued that under Section 47, Clause (2) the Court may treat a proceeding under this section as a suit or a suit as a proceeding and that we should treat the present suit as a proceeding under Section 47, Civil Procedure Code. There is no objection to converting the present suit as a proceeding under Section 47, Civil Procedure Code, but that will not be of any practical advantage to the plaintiff because he would at once be met by the plea of res judicata. The question that he wants to be decided in the present suit has already been decided against him in an earlier execution proceeding and no Court can now try a matter which was directly and substantially in issue in a former proceeding between the same parties. In this connection it was argued that the former decision of the learned Munsif was a summary decision and it cannot be said that Court had heard and finally decided the controversy between the parties. It is a mistake to say that the former decision was a summary decision and was not an adjudication which would have the force of res judicata. Even under Order XXI, Rule 58, the procedure to be followed is not a summary procedure, but the court proceeds to investigate the claims and objections and cannot shut out any party from producing evidence. In any event, it was the duty of the objector to have put forward before the Court all the evidence available to him and to have insisted that his claim be properly decided he should indeed, have insisted on his objection being treated under Section 47, Civil Procedure Code, and should not have got them amended.
12. It was finally argued that the Courts below decided the present suit in favour of the plaintiff on the merits and therefore justice is entirely with him and our decision has the effect of defeating a just cause. We have got to administer the law as it stands and cannot be influenced by other considerations. The position is that the plaintiff instead of filing the present suit ought to have filed an appeal against the decision of the Munsif in the execution department. It may be that even now Lachhmi Narain may be able to satisfy the Court where an appeal lay against the decision of the learned Munsif in the execution case that he was misled either by the wrong advice of counsel or by the attitude of the learned Munsif and it will be for the Appellate Court to decide whether a case has been made out for admitting an appeal which otherwise is barred by time under Section 5 of the Limitation Act. But it is not possible for us to help the plaintiff in the present proceedings. The result is that we dismiss this appeal with costs.