1. This appeal arises from an application filed by Appellant under section 47, Civil Procedure Code, for an order that he is not liable and his properties should not be proceeded against for recovery of money due under a decree passed against his brother on the fact of a hypothecation bond. Subsequent to the decree, the Appellant's brother died and thereupon his sons and the appellant were brought on record as legal representatives in Execution Case No. 666 of 1934-35. The Appellant objected to his being treated as a legal representative but the objection was overruled by me Executing Court and the order of the Executing Court was confirmed in appeal with a remark hat the binding nature of the debt should be established in order to render Appellant's share in the mortgaged properties liable. In the application filed by Appellant it is alleged that the decree is not binding on him as it related to a debt which was not for family benefit or legal necessity. The decree-holder contended that the application is not maintainable, that Appellant is bound by the decree as it was passed in a suit filed against his brother as manager and representative of the family and the debt was incurred for the needs of the family.
2. On a consideration of the evidence adduced by the parties, the learned Munsiff held that to the extent of Rs. 616 the debt is binding on Appellant and that his half share in the properties is liable for payment of this sum with interest at 9 per cent from 25-1-1928 (the date of the hypothecation deed) up to 19-5-1932 when the suit was filed, with proportionate costs and current interest. The appeal against this order proved unsuccessful. Hence this second appeal.
3. It is not now disputed that the Appellant and his deceased brother were members of a joint-family to which the properties subject to the hypothecation belonged and that Appellant is entitled to a half share in the said properties. The decree under which the properties are to be sold for realisation of the amount due to respondent was passed ex parte as seen from the copy. Exhibit II.
4. Both the Courts have assumed that the executing Court has jurisdiction to determine that the Appellant though not a party to the suit is bound by the decree passed thereon to a certain extent. The objection raised by the decree-holder in his statement that the petition is not maintainable and the matters referred to are such as should be decided in a regular suit, is ignored and the circumstances bearing on the element of necessity or binding nature of the debt are alone noticed in disposing of the application. The correctness or otherwise of the finding about Appellant's liability would arise for consideration if the Court executing the decree has power to decide it and not otherwise. Section 47 of the Code of Civil Procedure under which the application is filed and under which it can, if at all, be sustained states:
'All questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit...........' (the rest of the section is not material.)
Obviously the question whether the Appellant's, share in the mortgaged properties can be proceeded against for recovery of the amount due under the decree is not one relating to discharge or satisfaction of the decree and the doubt can arise only about its being one relating to execution. The Appellant has been treated by an order of the Court as a representative of the judgment-debtor. Section 50 provides that where the judgment-debtor dies before the decree has been fully satisfied, the decree may be executed against the legal representative of the deceased and limits the liability of the legal representative to the extent of the property of the deceased which has come to his hands. According to Section 53 property in the hands of a son or other descendant which is liable under Hindu Law for the payment of the debt of a deceased ancestor in respect of which a decree has been passed shall be deemed to be the property of the deceased which has come to the hands of the son or other descendant as his legal representative. These sections do not apply as the decree-is one passed under Order 35, C.P.C., specifying the properties by sale of which the amount is to be realised and execution of the decree does not require or depend upon the ascertainment of the property of the deceased in the hands of the Appellant, The Appellant not being a son or descendant of the deceased is not liable under Hindu Law for payment of his debts and as such property in his possession cannot be deemed to be the property of the deceased. It is well settled that the executing Court has to execute the decree as it stands and has no power to vary or alter it. There is no ambiguity in the decree and no suggestion of its being a nullity or inexecutable as it stands. The liability of Appellant's share in the properties which is in contest would depend on the factum and nature of the debt which are to be made out by the Respondent to be such as to bind the Appellant. The Appellant could have been made a party to the suit and the question of his liability adjudicated upon. The ownership of the property is not in controversy as it is admitted that it is all joint family property. When this was not done, for whatever reason it be, and there is no difficulty to execute the decree as it is the executing Court cannot start an inquiry into these matters only because the judgment-debtor died subsequent to the decree and decide the contentions of persons who were not parties to the suit as regards their liability as it is beyond the province of the executing Court to determine the scope or the decree. As observed in 'Lakshmadu v. Ramudu', AIR (26 1939 Mad 867:
'Section 47 C.P.C., applies to matters which arise after a decree has been passed and not to those which were in existence even at the time when the suit was instituted.'
That was a case in which the sons impeached the mortgage effected by their father in a suit instituted by them after the mortgage was sued upon and decree obtained by the mortgagee in proceedings to which the sons were not parties. In Shiv Das Singh v. Karam Chand & Sons', AIR (21) 1934 Lah 438 on the death of the mortgagor after the decree was passed the son as legal representative raised the objection that the mortgage by the father was not supported by legal necessity. The objection was held to be untenable as it related not to the executability but propriety of the decree itself which has to be determined by a separate suit. In 'Hamid Gani v. Amma Sahib'. AIR (28) 1941 Mad 898 (FB) the question whether a person brought on record in execution proceedings as legal representative of the judgment-debtor can establish his rights by a separate suit or whether he should have his claims to the property decided in execution proceedings was referred to a Full Bench. It was held that the claim has to be decided in a separate suit and not in execution proceedings.
5. The objection of the decree-holder to the maintainability of the petition has therefore to prevail and the Appellant has to seek the relief claimed in a separate suit. The orders of the Courts below are reversed and the application filed by the Appellant is dismissed. Parties will bear their own costs throughout.
6. Order accordingly.