N.G. Chandavarkar, Kt., J.
1. The facts found by the lower appellate Court, on which the question of law arising upon this second appeal turns, are shortly these.
2. Chimnaji wallad Ramji brought a suit on a bond against Mahadevgir Guru. The latter having died during the pendency of the suit, his widow Rahul and his brother Narayangir were brought by Chimnaji on the record as the deceased's legal representatives. The suit ended in a decree, awarding the claim out of the property of the deceased. Before execution, both Rahul and Narayangir died. The decree-holder (Chimnaji) then brought on the record the present respondents as legal representatives of the deceased judgment-debtor, Mahadevgir, and applied for execution of the decree by attachment and sale of the property now in dispute. The respondents denied that they were the legal representatives of the deceased, and that they had any property of his which could be liable for the decree. All these objections were, however, negatived by the Court executing the decree and the property in dispute was attached and sold. The present appellant, having purchased it at the Court-sale, sued to recover possession from the respondents.
3. Both the Courts below have disallowed the claim on the ground that the property in dispute was the joint property of the deceased Mahadevgir and the respondents, held by them as co-parceners in a joint Hindu family, and that on Mahadevgir's death the respondents having acquired an exclusive title to it by survivorship, the appellant obtained no title at the Court-sale which he could legally assert as against the respondents.
4. In the lower Court it was contended for the appellant that the respondents were debarred by the provisions of Section 244 of the Code of Civil Procedure from asserting their title. That Court disallowed the contention, relying on the decision of this Court in Maganlal v. Doshi Mulji ILR (1901) 25 Bom. 631 : 3 Bom. L.R. 255.
5. Act XIV of 1882, which applies to this case, laid down a certain procedure as to the execution of a decree for money obtained against a person brought on the record as the legal representative of a deceased judgment-debtor. If such person denied his representative character, the Court executing the decree could either itself decide the question of representation or refer the parties to a separate suit (Section 244, last paragraph). Under Section 252, the decree-holder could attach and sell the property of the legal representative in satisfaction of the decree under certain circumstances, that is, when there was no property of the deceased in the possession of the legal representative and the latter had failed to satisfy the Court that he had duly applied such of the deceased's property as had come into his possession.
6. In the present case, according to the finding of the % lower appellate Court, the decree-holder Chimnaji brought the property to sale, although he knew that the respondents were not the deceased Mahadevgir's legal representatives. The property was sold by the Court at the decree-holder's instance as that of the deceased. So far it cannot be denied, and indeed the respondents' pleader before us had to concede, that the question was one relating to the execution of the decree arising between the decree-holder and the respondents as judgment-debtors under Section 252. It was, therefore, a question in relation to them falling within Section 244 of the Code of Civil Procedure by reason of the explanation to Section 647 of the Code, that applications for the execution of decrees are proceedings in suits. The respondents were bound to object to the attachment and the sale under that section, so far as the decree-holder's action was concerned. But they did not object. It is now contended that, whatever might have been the result if the decree-holder had been a party to the present suit, the dispute now is between the auction-purchaser, who is a stranger to the previous suit; and the execution proceedings therein, and the respondents, and that, therefore, Section 244 does not apply. The answer to that contention is that, though an auction-purchaser at a Court-sale in execution of a decree is not a party to the suit in which the decree was passed, and though he is not a representative of either the decree-holder or the judgment-debtor for the purposes of Section 244, yet if the question raised by the judgment-debtor as to the legality of the Court-sale is virtually one between the parties to the suit, that is, between the decree-holder and the judgment-debtor, and if in the decision and result of that question the auction-purchaser is interested, the judgment-debtor ought not to be allowed to attack the sale in a suit. That is upon the ground that he is precluded by Section 244, from raising the question by relying upon it as a defence in any proceedings other than those under Section 244. That is the law laid down by the Privy Council in Prosunno Coomar Sanyal v. Kasi Das Sanyal (1892) L.R. 191.I A. 166. In their judgment the ruling of the Madras High Court in Kuriyali v. Mayan ILR(1883) Mad. 255 is referred to by their Lordships with approval. In that Madras case it was held that the question whether the property mentioned in the decree was available for execution was one arising between the decree-holder and the judgment-debtor's legal representative. So in the present case that is substantially the question. The test in all such cases is, whether the ground upon which the Court-sale is attacked as conferring no title upon the auction-purchaser, affects the parties to the suit and could have as between them been raised and determined under Section 244 and whether the auction-purchaser, though not a party to that suit, is a party interested in the result.
7. This view is not inconsistent with but is supported by the decision of this Court in Maganlal v. Doshi Mulji ILR (1901) 25 Bom. 631, which is relied upon by the lower appellate Court, as warranting its conclusion. In that case the question was simply between the judgment-debtor and the auction-purchaser; and therefore it was held that the question could be tried in a separate suit and that Section 244 was no bar. But the judgment in that case explains the Privy Council decision in Prosunno Coomar Sixnyal v. Kasi Das Sanyal , as applying where the question is virtually between the parties to a suit and the auction-purchaser is affected by its determination.
8. For these reasons the decrees of the Courts below must be reversed and the claim of the appellant allowed with costs throughout on the respondents.