Basil Scott, C.J.
1. This suit is brought by the plaintiff to establish his right to attach and sell the interest of the defendant (amounting to 1/4th of an equity of redemption) in execution of a Small Cause Court decree passed on an instrument of loan signed by the judgment-debtor alone, who was a brother and co-parcener of the present defendant. The money is held to have been borrowed for the benefit of all the brothers. The present defendant was not a party to the suit in the Small Cause Court.
2. The question now to be decided is unembarrassed by the interest of any innocent Court-sale purchaser. It is simply whether the unencumbered interest of a Hindu can be attached and sold in execution to satisfy a money-decree obtained against his brother in a suit to which the objector was no party.
3. It may be conceded that on the findings of the lower Court the present defendant was a principal disclosed or undisclosed of the borrower and the latter as an agent would have an agent's rights of indemnity, but that is not sufficient for the plaintiff. He desires to obtain satisfaction direct from his debtor's brother's property. A similar question was stated but not decided by the Judicial Committee in Durgapersad v. Keshopersad Singh 9 I.A. 27 : 11 C.L.R. 210 : 8 C. 656 : 6 Ind. Jur. 272 : 4 Sar. P.C.J. 332. In Bombay oases where the question has arisen the current of decisions has not been uniform.
4. Until Hari Vithal v. Jairam Vithal 14 B. 597 it was uniformly held in this Court that a sale under a decree against the manager of a Hindu family when that manager was not the father of the other co-sharers, only passed the right, title and interest of the party to the suit: see Maruti Narayan v. Lilachand 6 B. 564; Pandurang Kamti v. Venkatesh Pai 7 B. 95 (note) and Lakshman Venkatesh v. Kashinath 11 B. 700. In Hari Vithal v. Jairam Vithal 14 B. 597 however, it was stated that:
Though in the Bombay Presidency the course of decisions as regards sales under a decree against a manager has been as stated in the case of Lakshman Venkatesh v. Kashinath 11 B. 700 still the right of a manager to bind the estate by transactions for its benefit is well established.... That being so, the decision of the Judicial Committee in Daulat Ram's case 14 I.A. 187 : 15 C. 70 : 11 Ind. Jur. 435 : 5 Sar. P.C.J. 84 : 1 P.R. 1883 must now be held to govern cases such as the present, where family property has been sold in execution of a decree against a manager alone. It practically overrules the decision in Lakshman Venkatesh v. Kashinath11 B. 700 and the preceding decisions there referred to.
5. Daulut Ram v. Mehr Chand 14 I.A. 187 : 15 C. 70 : 11 Ind. Jur. 435 : 5 Sar. P.C.J. 84 : 1 P.R. 1883 related solely to mortgaged property and it does not appear to me to affect in any way the authority of Lakshman Venkatesh v. Kashinath 11 B. 700 and kindred cases. In a later case, however Sakharam v. Devji 23 B. 312. the view taken in Hari Vithal v. Jairam Vithal 14 B. 597 was adopted and re-enforced by a reference to Sheo Pershad Singh v. Saheb Lal 20 C.453 again a case of mortgage or, as it is called in the report, 'pledge'.
6. Hari Vithal v. Jairam Vithal 14 B. 597 and Sakharam v. Devji 23 B. 312. have not been accepted without demur: see Madhusudan Shivaram Kanvinde v. Bhau Atmaram Lad 18 Ind. Cas. 385 : 15 Bom. L.R. 36.
7. In Khiarajmal v. Daim 32 C. 296 : 32 I.A. 23 : 7 Bom. L.R. 1 : 1 C.L.J. 584 : 9 C.W.N. 201 : 2 A.L.J. 71 the Judicial Committee observed that the Court has no jurisdiction to sell the property of persons not parties to the proceedings or properly represented on the record, although judicial sales are not disturbed on the ground that some members of the family who were minors were not parties, if it appears that there was a debt justly due from a deceased member of the family and no prejudice is shown to the absent minors;
8. This must now be taken subject to Section 53 of the Civil Procedure Code. In the present case the stage of sale has not been reached and there is no reason for assuming jurisdiction to dispose of property belonging to one who was no party to the suit and is not a representative of the judgment-debtor.
9. I would reverse the decree and dismiss the suit with costs throughout.
10. I concur. I desire to add that 1 express no opinion as to the correctness of the view taken in Hari Vithal v. Jairam, Vithal 14 B. 597 that Daulat Ram's case 14 I.A. 187 : 15 C. 70 : 11 Ind. Jur. 435 : 5 Sar. P.C.J. 84 : 1 P.R. 1883 has the effect of overruling the earlier decisions of this Court in Maruti Narayan v. Lilachand 6 B. 564 and Lakshman Venkatesh v. Kashinath 11 B. 700. The point does not arise in this case, and when it arises it will require to be carefully considered in view of the doubt expressed in Madhusudan Shivaram Kanvinde v. Bhau Atmaram Lad 18 Ind. Cas. 385 : 15 Bom. L.R. 36.