JUDGMENT : Mohapatra, J. - The Defendants are the Appellants in this second appeal against the reversing judgment of Sri K.N. Sarkar, Additional Subordinate Judge of Cuttack, dated 15th July 1958, arising out of a suit for declaration of title and for possession. The Plaintiff also prayed for mesne profits, past and future. The Plaintiff obtained a decree for money against the present Defendants who not having paid the decretal amount, execution was started and in execution of the decree for money, according to the Plaintiff's version the suit property was purchased on 17th August 1938 by the Plaintiff. The Plaintiff took possession through Court on 23rd June, 1941. 2. The defence is that the purchase made by the Plaintiff in execution of the money decree was only the right, title and interest of the judgment-debtors and what was sold in execution of the decree did not exist as the Defendants had ceased to have any interest whatsoever in respect of the property put up for sale and purchased by the Plaintiff. 3. The trial Court in the first instance found that on the date of the sale the Defendants bad no interest whatsoever in respect of the property purchased, and as such, he dismissed the Plaintiff's suit which was also confirmed in appeal. The matter went up in Second Appeal No. 45 of 1953 and my learned brother Rao, J. remanded the case on 9th July 1955 for a fresh trial as the evidence was lacking in respect of the writ of attachment. After remand, the trial Court again dismissed the Plaintiff's suit; but the lower appellate Court has reversed the judgment and decree of the trial Court and having allowed a decree in favour of the Plaintiff in respect of the property described in Schedule B of the plaint, the-Defendants have come up in second appeal. 4. To appreciate the point of the controversy two essential features are necessary. It is to be noted, what was put up for sale was, as it appears from the sale certificate itself, the undivided five annas interest of the judgment-debtors who are the present Defendants in respect of Touji No. 3818 in mouza Patwari. As I have already mentioned, the sale took place in the year 1938, the sale certificate being 17th August 198. As I have already mentioned, the sale took place in the year 1938, the sale certificate being 17th August 198. Prior to the sale, the Touzi was the subject matter of proceedings under the Estates Partition Act and a partition decree was passed by the competent authority in the year 1935. What had been allotted to the share of the Defendants were the specific properties in mouza Patwari appertaining to Touzi No. 9008 the properties which have been described in Schedule B and have been decreed in favour of the Plaintiff by the lower appellate Court. There cannot be any dispute over the position of law that the purchaser in execution of the money decree purchased only the right title and interest of the judgment-debtors existing at the time of the sale. It is very clear from the aforesaid facts that Touzi 3818 had already been partitioned in the year 1935 on the basis of a decree by the competent authority and that specific properties had already been allotted to the Defendant-judgment-debtors. On the date of the sale the judgment-debtors had no undivided interest of five annas in Touzi No. 3818. The properties which were the subject matter of the sale certificate appear to me to be non-existent at the time of the sale and the Defendants had acquired valid title and rights in respect of the property described in Schedule B of the plaint appertaining to Touzi No. 9008. There is no dispute over the position that this Schedule B property was never put to sale and was never purchased by the present Plaintiff-decree-holder. In my view, therefore, the present decree-holder on the basis of the sale cannot be entitled to a decree in respect of the property described in Schedule B of the plaint as it was never attached nor sold. 5. Reliance was placed on behalf of the Respondent-decree-holder upon a decision of their Lordships of the Privy Council reported in 69 I.C. 180. (P.C.) Rai Baijnath Goenka v. Maharaja Sir Ravenswar Prasad Singh. The dictum laid down there is as follows: A decree, though for possession of certain respective shares in a joint estate, may be executed in respect of the substituted shares on a subsequent partition of the estate without an application for amendment of the decree being made to the Court which passed it. The dictum laid down there is as follows: A decree, though for possession of certain respective shares in a joint estate, may be executed in respect of the substituted shares on a subsequent partition of the estate without an application for amendment of the decree being made to the Court which passed it. Enquiry as to what are such substituted shares is a question arising within the meaning of Section 47 of the Code of Civil Procedure, between the parties and relates to the execution and satisfaction of the decree. The decision of their Lordships of the Privy Council, in my opinion, does not help the present Plaintiff at all but on the contrary it goes a great extent against him. Their Lordships laid down that the principle of substituted property applies when partition takes place subsequent to the sale. The present case is exactly opposite. The partition took place in the year 1935 and the sale took place in the year 1938. At the time of the sale the judgment-debtors had no interest in the property put up for sale but had on the basis of the decree acquired valid title in respect of the property described in Schedule B of the plaint which was never put up for sale and never purchased. Moreover as their Lordships have laid down that this is a matter coming within the language of Section 47 of the CPC and cannot be tile subject-matter of a separate suit. Indeed a suit can be turned into proceedings u/s 47, CPC and vice versa subject to the point of limitation. Here the sale took place in the year 1938 and the present suit is of the year 1950. 6. Mr. Mukherji, appearing on behalf of the Respondent, however, places reliance on a decision of the Patna High Court reported in Sheodhyan Singh and Others Vs. Mt. Sanichara Kuer and Others. The facts in that case appear to be different. There was a mistake in respect of plot No. 1960 for 160. Mr. Mukherji relies upon a dictum laid down by their Lordships which runs to the effect: If there is a property existing and identifiable accurately described and fully identified in the schedule but in some respects it is misdescribed, it will be a case of misdescription, which would be treated as a mere irregularity, and it will not affect the title of the purchaser. The question really, in such cases, is whether the defect is of the nature of a misdescription of the property, or a case of non-existent property. As I have already mentioned, the instant case before me is one of non-existence of the right, title and interest of the judgment debtors in respect of the property put up for sale as such, the Plaintiff is not entitled to a decree for the property described in Schedule B which was never sold and purchased. 7. Accordingly the appeal is allowed, the judgment and decree passed by the lower appellate Court are set aside and the Plaintiff's suit is dismissed. The parties are to bear their own costs throughout. Final Result : Allowed