JUDGMENT Asthana, J.
1. This is a defendant's appeal against the order dated 10-7-1951 of the District Judge of Meerut setting aside the decree of the trial court and remanding the case to it for disposal according to law.
2. The circumstances which gave rise to the case out of which this appeal has arisen may be stated as follows : The plaintiff Lala Debi Saran, along with another person, obtained on lease on a monthly rent of Rs. 25/- a piece of land on 29-12-1937 and thereafter constructed some shops on it. The lease was for a fixed term of 5 years.
Before the expiry of the period of the lease defendants 2-4 granted a theka to defendant 1, Lala Murari Lal, on 11-4-1942 in respect of some property including the property which had been given on lease to Debi Saran. After the expiry of the term of the lease in favour of Debi Saran, Lala Murari Lal filed a suit, No. 385 of 1943, against Debi Saran for his ejectment from the land in dispute. This suit was decreed on 13-3-1944.
Debi Saran was given a right under the decree to remove the materials of the constructions which had been built by him on the disputed land. Debi Saran filed an appeal against this decision before the District Judge and his appeal was dismissed. He then filed a second appeal in this Court and also made an application for the stay of the execution of the decree till the disposal of the appeal.
This Court did not stay the execution and authorised the decree-holder to take possession of the land together with the structures on it, but in order to safeguard the rights of the plaintiff, directed the decree-holder not to demolish the constructions till the disposal of the appeal. Thereafter the decree-holder entered into possession of the land together with the constructions on it but he did not demolish the constructions in pursuance of the orders of this Court.
The appeal was dismissed by this Court and the appellant Debi Saran was allowed one month's time for the removal of the materials, from the date of the decree of this Court. It may be mentioned here that the decree of this Court was passed on 5-4-1946. On 6-5-1946 Debi Saran made an application to the executing court asking for its assistance to remove the materials on the ground that he had not been permitted to remove them within the period of one month by the tenants who were in possession of the land along with the constructions on it.
It may be mentioned that at the time this application was made the decree-holder had granted a sub-lease of the property in dispute in favour of defendants 5 to 10. This application was dismissed and the plaintiff was directed to bring a regular suit for the enforcement of his claim. In pursuance of this direction he filed a suit against the decree-holder, his tenants and also the zamindars who had originally granted the lease in favour of the plaintiff and subsequently the theka in the name of Murari Lal.
In this suit the plaintiff claimed that he should be allowed to remove the materials of the shops which had been constructed by him on the disputed land and that a decree for R Section 1,500/- be granted in his favour against defendant 1 or whoever may be found liable for the damages suffered by him due to non-removal of the materials.
The trial court dismissed the suit on the ground that it was barred by Section 47, Civil P. C. and also Section 11, Civil P. C. The lower appellate court did not agree with the decision of the trial court. It was of the opinion that neither Section 47 nor Section 11, Civil P. C. was applicable to the present case. It, therefore, allowed the appeal and remanded the case as has already been said above.
3. The main question for consideration is whether Section 47, Civil P. C. is applicable to the present case. In order to decide this question it is necessary to determine whether the matter in dispute in the present case is one relating to execution, discharge or satisfaction of the decree and whether it is between the parties to that decree or their representatives-in-interest.
It has been contended on behalf of the appellant that the right of the plaintiff to remove the materials of the shop constructed on the disputed land was a matter which related to the execution of the decree and should have been decided in the execution proceedings and not by a separate suit.
On the other hand it was contended on behalf of the respondent that so far as the decree for the possession of the land was concerned it was satisfied as soon as the decree-holder obtained possession aver it; that there was nothing further left in the decree and, as such, it could not be said that the right of the respondent to remove the materials was a matter relating to the execution, discharge or satisfaction of the decree.
So far as the right of the respondent to remove the materials is concerned, it was given to him under the decree and it was by the decree of this Court that he was given a right to remove the materials within one month from the date of the decree. I am not prepared to accept the contention, on behalf of the respondent that the right to remove the materials did not arise out of the decree. It may be that the respondent may have got an independent right to remove the materials, but at the same time there can be no doubt that in the present case he was given that right under the decree itself.
It cannot, therefore, be said that the right to remove the materials did not arise out of the decree. He could certainly enforce this right if he would have made an application for the removal of the materials within one month according to the terms of the decree, and if he could exercise this right in the execution proceeding there does not appear any satisfactory reason why he should be permitted to file a separate suit in respect of such a right, If the decree grants certain rights to both the parties there can be no doubt that those rights have to be enforced in the execution proceedings and not by a separate suit as the matters relating to the execution of such rights are matters relating to the execution of the decree. I do not think that merely because the decreeholder's right given in that decree is satisfied the judgment-debtor would not be able to apply in the execution proceedings for the enforcement of the rights given to him under that 1 decree.
Learned counsel for the appellant contended that the present case is one of excessive execution of the decree and if in the execution of the decree the decree-holder has obtained possession over certain property to which he is not entitled under the decree, the remedy of the judgment-debtor is to apply for the restitution of that property in execution proceedings and not by a separate suit.
In support of this contention he has relied on several decisions. -- 'Abdul Karim v. Mt. Islam-unnissa Bibi', 1916 All 104 (AIR V 3) (A); -- 'Ganpat Rao Sultan Rao v. Anand Rao Jagdeo Rao', 1920 Bom 208 (AIR V 7) (B). It has not been seriously disputed before me on behalf of the respondent that where the decree-holder has obtained possession in execution of the decree in excess of that to which he was entitled under the decree, the remedy of the judgment-debtor, who is the owner of this excess property, is to apply in execution proceedings and not to file a separate suit for recovery of possession of that property.
I do not think it is necessary to consider these decisions in view of the fact that I am of opinion that the present case is one where the judgment-debtor seeks to enforce the rights which have been granted to him under the decree itself. In the circumstances, I am not inclined to accept the contention on behalf of the respondent that the right of the plaintiff to remove the materials from the disputed land was not a matter relating to the execution, discharge or satisfaction of the decree.
4. It was next contended for the respondents that in the present suit the plaintiff had claimed damages also which accrued to him due to the wrongful act on the part of the defendants in not allowing him to remove the materials of the shop and this relief could not have been granted to him in the execution proceedings. In my opinion the relief for damages is consequential to the relief for the removal of the materials and flows from it. The plaintiff could have been granted damages in execution proceedings if it was found that he had suffered on account of any wrongful act on the part of the decree-holder or his representative-in-interest.
5. It was further contended that the parties to the suit were not parties to the decree and as such Section 47 would not apply because that section was restricted in its application to the parties to the decree or to their representative-in-interest. It was also contended that the tenants to whom the disputed land along with the shops was given by the decree-holder after the decree, were not representatives-in-interest of the decree-holder.
I have not been able to understand as to why the sub-lessees of the property in dispute from the decree-holder are not his representatives-in-interest. They took the sub-lease subject to the liabilities of the decree-holder on the date of the execution of the sub-lease. If the decree-holder was not competent to retain the materials of the shops then the sub-lessees could not retain it and they would be bound to deliver possession of it to the plaintiff-respondent.
In my opinion defendants 5 to 10, who are the sub-lessees of the decree-holder Murari Lal, are his representatives-in-interest within the meaning of Section 47, C. P. C. So far as defendants 2 to. 4 are concerned it is very doubtful if they are the representatives-in-interest of the decree-holder. These persons do not derive any title or interest from the decree-holder. On the contrary, it is the decree-holder who obtained the theka from them. In the circumstances, I am of opinion that so far as these three persons are concerned the plaintiff could not have proceeded against them in the execution proceeding.
It, however, appears from an examination of the plaint that the plaintiff was prevented from removing the materials by the decree-holder and his sub-tenants who obtained possession of the property after the execution of the sub-lease, and not by defendants 2 to 4. It appears that defendants 2 to 4 have been impleaded merely to escape the effect of Section 47, Civil P. C. Anyway, if the plaintiff has really got any grievance against defendants 2 to 4 he is entitled to proceed against them in a regular suit, but so far as the other defendants are concerned, I am of opinion that Section 47 is clearly a bar against them.
6. It has been contended before me on behalf of the respondent that according to Section 47(2), Civil P. C. it is open to the court to treat the present suit as a proceeding under Section 47, Civil P. C. subject to the question of limitation or jurisdiction, and in view of this provision even if the present salt is not maintainable the trial court may be directed to treat it as an application in the execution proceeding and may decide it according to law. Learned counsel for the appellant has no objection to this proposal provided the application is within limitation & the trial court has jurisdiction. I do not think that there should be any objection to this proposal.
7. I, therefore, allow this appeal, set aside the order of the lower appellate court, dismiss the suit against defendants 1 and 5 to 10 and send back the case to the learned Munsif with the direction that subject to the question of limitation and jurisdiction the plaint may be treated as an application under Section 47, Civil P. C. against them and decided according to law. As against defendants 2 to 4 the plaintiff is at liberty to proceed in the suit.
8. Leave for special appeal is granted.