1. We are of opinion that the Assistant Judge has wrongly held that the present suit is not maintainable. The defendant No. 1 obtained a decree on a mortgage against one Hari Trimbak on the 31st May, 1882, and in execution of her decree caused certain property to be sold which the plaintiff claims as his own, under a sale to himself by the sons of Hari Trimbak made on the 31st July, 1882. The Assistant Judge has held (1) that under Section 244 of the Code of Civil Procedure the plaintiff is not entitled to bring a suit, and (2) that his suit is premature, as he should have waited till he was dispossessed by the auction-purchaser, the defendant No. 2.
2. Section 244, however, does not bar the suit. It could have no application except as regards the property affected by the decree, and it is evident from the decision of the Assistant Judge that a part, at any rate, of the property now in suit was not included in the decree. Moreover, the plaintiff does not claim title from the judgment-debtor in the former suit, and the defendant No. 2, the auction-purchaser, cannot be held to be the representative of either party. See Hira Lal Chatterji v. Gourmoni Debi I.L.R. 13 Cal. 326 ; Jagat Narain v. Jag Rup I.L.R. 5 All. 452 ; Ramchhaibar Misr v. Bechu Bhagat I.L.R. 7 All. 641. In the second reason also we cannot ooncur. As soon as the plaintiff's title was denied, as it clearly was when his property was sold in execution as belonging to some one else, he was entitled to bring his suit. He was not obliged to wait until he wag actually dispossessed : see Baji Teshvant v. Irimbak Atmaram Printed Judgments for 1887 p. 287,
3. We reverse, therefore, the decree of the lower Appellate Court and remand the appeal for a hearing on the merits. It is stated that the plaintiff has now been dispossessed by defendant No. 2. If that is so, or if, in consequence of any proceedings subsequent to the sale, the Court thinks that a prayer for consequential relief should be made, there would be no objection to the Court permitting such an amendment of the plaint as may, under the circumstances, be necessary. Costs to abide the result.