Brodhurst and Tyrrell, JJ.
1. A few facts may be stated in this matter. Two persons, Ram Din and Gulab Kuar, mortgaged certain carriages to one Mata Ghulam, who, on the 12th May 1886, brought a suit to recover his money and obtained a decree which declared that the carriages in question were charged with the debt and were liable to sale in satisfaction of it. The respondent here is the assignee of that decree from Mata Ghulam. The respondent was himself a decree-holder against the same Ram Din mentioned above for another debt, and in execution of that decree he got one of the carriages sold, and it was bought by persons who transferred it to the present appellants. The respondent in execution of that decree of Mata Ghulam attempted to enforce his charge against one of the carriages, but was defeated by an order of the Court executing the decree made on the 31st July 1886, and that order has given rise to the present suit which has been brought under the provisions of Section 283 of the Civil Procedure Code. The respondent, against whom the order of the 31st July 1886, was made, has instituted this action, to establish the right which he claimed to the carriage in dispute, and he has coupled with this suit a claim for damages in the event of it being found that the defendants have improperly converted the carriage and made it unavailable in satisfaction of his claim.
2. The Court of First Instance held that this action was not maintainable. The Lower Appellate Court reversed that finding and remanded the case for decision under Section 562 of the Civil Procedure Code. There is no doubt that that order was correct in one respect; that there were no materials on the record which would enable the Court of First Appeal to determine the case for itself. But in this appeal it is contended by the defendant that the present action is unsustainable, inasmuch as the plaintiff (respondent) has had to take action under Section 352 of the Code, and because Mata Ghulam's decretal debt was scheduled in his favour by the Court exercising insolvency jurisdiction at Allahabad, the insolvent in question being Ram Din, one of the judgment-debtors under Mata Ghulam's decree.
3. Mr. Sundar Lal has argued with much force that the effect of the respondent scheduling his decretal claim under Mata Ghulam's decree against Bam Din is that Mata Ghulam's decree has been superseded and put out of existence, and that to allow the respondent to maintain the present action would be to put him in the position that, while holding a new decree in super-session of Mata Ghulam's decree, he might obtain another and independent remedy with regard to the same original debt which was the subject of the decree of the 12th May 1886.
4. It seems to us that there is more ingenuity than force in this contention. The scheduling of the respondent's claim under Section 352, with reference to Mata Ghulam's decree, had not the effect of superseding that decree or of creating another decretal right in addition to it or independent of it, and therefore there does not, out of this circumstance alone, arise any impediment to the maintenance of the present action which, as we said above, is brought under Section 283 of the Code to establish against persons who are strangers to the decree of the 12th May 1886, the right which the respondent claims to have in the carriage which was the subject of that decree, but has now passed into the possession and control of strangers to that decree.
5. It seems to us that the present action is founded upon a new and different cause of action, and being brought against persons who are no parties to Mata Ghulam's decree, there can be no question of the competence of the respondents to maintain his present action. The appeal is dismissed with costs.