1. This is an appeal in a case of execution of a decree. The facts are as follows:
2. On the 31st of March 1890, Messrs. Harman & Co. obtained a decree against the late Rajah Hari Har Dat Dube. The first application for execution was made on April 15th 1890, by the decree-holders, who asked that certain immoveable property (a house) should be attached and sold in satisfaction of the decree. The application was granted, and the attachment of the house was effected on the 24th of April 1890. Those execution-proceedings were struck, off on June 30th, 1891, probably to clear the Court's file of pending cases at the end of the half-year; but the attachment was maintained.
3. The second execution-application was made on July 7th, 1891. In it that decree-holders asked chat the house already under attachment should be notified for sale and brought to sale to satisfy the decree. This was allowed, and September 3rd 1891, was fixed for the sale. Subsequently the sale was twice postponed by the parties and once was stayed by order of the District Judge, in whose Court a suit for the recovery of the entire Taunpur riasat was pending at the suit of Rajah Shankar Dat against Rajah Hari Har Dat.
4. Rajah Hari Har Dat died at Madras on January 13th, 1892. On the following day, January 14th, 1892, (but probably before he knew of the death of his brother) Rajah Shankar Dat filed in the execution Court an objection, which purported on its face to have been made under the provisions of Section 278 of the Code of Civil Procedure. He objected to the sale of the house on the ground that it was his property by virtue of an agreement, a compromise and decree, that it was not the property of Rajah Hari Har Dat and was not liable to be sold in execution of a decree against the latter. On this objection notice was ordered to issue to the decree-holders and January 23rd 1892, was fixed for the hearing. The date for the hearing was postponed from time to time on application by Shankar Dat. Eventually June 30th, 1892, was fixed for the hearing, and on September 6th, 1892, the case was disposed of the objection raised by Shankar Dat being disallowed, and it was ordered that execution should issue.
5. But meanwhile the decree-holders had taken other proceedings for on March 17th, 1892 (in consequonce of Rajah Hari Har Dat's death), they applied to the execution Court, asking that the execution-proceedings should be continued against Rani Sahudra Kuar, widow of the deceased Rajah, whom the decree-holders described as heir of the deceased, and against Rajah Shankar Dat, who, the application alleged, was in possession of the property of the deceased. The application asked that the names of those two persons should be substituted on the record for Rajah Hari Har Dat's. Notice of this application was sent to Rajah Shankar Dat under Section 248 of the Code of Civil Procedure calling on him to show cause against it on March 29th, 1892. Raja Shankar Dat showed cause on March 25th, 1892, and raised the same objection as he had already set forth in his previous objection on January 14th, 1892, namely, that the property under attachment was his property and was not liable to be taken in execution of a decree against his deceased brother. The consideration of this objection of March 25th, 1892, was from time to time adjourned in the same manner as the consideration of the objection of January 14th, on identical applications made as to each by Shankar Dat, and simultaneously with the former objection it was disallowed on September 6th, 1892, by an order identical with that on the other objection.
6. Rajah Shankar Dat appealed to the High Court against the order disallowing his objection of the 25th of March 1892. On the case being called on the respondents' vakil took a preliminary objection to the hearing of the appeal. His objection was founded on Section 283 of the Code of Civil Procedure, and was to the effect that as the appellant had not instituted any suit as permitted by Section 283 to establish his right to the property in dispute, as claimed by him in his objection under Section 278 of the Code on January 14th, 1892, the order made under Section 281 rejecting that objection had become conclusive against the right he then claimed, namely, the right he now sought to establish by the present appeal. We have heard Mr. Durga Charan and Mr. Goal an at length on this point. On a full consideration we have come to the conclusion that the objection is untenable and unsound. In our opinion the crucial question for our consideration is, would a suit by Shankar Dat in the terms of Section 283 of the Code of Civil Procedure have been maintainable? Now the facts show that Shankar Dat was brought into the execution-proceedings by the decree-holders, who, by their application of March 17th, 1892, treated him as a legal representative of the deceased judgment-debtor. Their application was that the execution might be continued as against him. The application was clearly one made under Section 234 of the Code, inasmuch as by it the decree-holders asserted that Shankar Dat was in possession of certain assets of the deceased judgment-debtor, and asked for sale of those assets in execution of their decree. Notice of that application was, under Section 248 of the Code, served on Shankar Dat and the application for execution in the manner prayed for by the decree-holders was eventually allowed by the execution Court on August 8th 1892. Mr. Durga Charan admits that this appeal has been properly framed as an appeal from an order-parsed under Section 244 of the Code, and that had the decision been the other way his clients would have been entitled to appeal; and considering who the present litigants are, it is clear that the matter decided by the execution Court was one between the decree holders and the representative of the judgment-debtor. The question decided by the Court was as to the right of. the decree-holders to bring to sale certain property as assets belonging to their judgment-debtor in the possession of the appellant, as to which the latter set up an adverse title. Such a question is one arising between the parties or their representatives and relating to the execution of the decree. As such, under the opening clause of Section 244, it could be determined only by an order of the execution Court and not by a separate suit. If Shankar Dat were to institute the suit mentioned in Section 283 of the Code the only issue, which could be raised in that suit is, are the decree-holders entitled to sell the house in dispute as the property of their deceased judgment-debtor? That is the very question which had been decided by the order under Section 244. But, as Shankar Dat was impleaded as a legal representative under Section 234 and as an order had been passed against him in that capacity under Section 244 of the Code, it clearly follows from the opening clause of Section 244 that he could not have maintained the separate suit. His only remedy was by way of appeal from the order. As to a person brought in as a representative after decree it has been held by a Full Bench of the Calcutta High Court in Panchanun Bandopadhya v. Babia Bibi I.L.R. 18 Cal. 711, following previous decision that an objection taken by a person who has become the representative of a judgment-debtor in the course of the execution of a decree to the effect that the property attached in satisfaction thereof is his own property and not held by him as such representative is a matter cognisable only under Section 244 of the Code, and is not the proper subject-matter of a separate suit by a party against whom an adverse order may have been passed.' That case is quite on all fours with the facts in this case. From the moment the appellant Shankar Dat was impleaded as a legal representative holding assets of the deceased judgment-debtor the two proceedings must be taken to have been proceedings under Section 244. Up to that time Shankar Dat no doubt had been a stranger prosecuting a claim under Section 278 to the disputed property. But as soon as, by the citation of the decree-holders under Section 234, he became a representative, he from that time ceased to be a stranger to the execution-proceedings and became a party as representative of the deceased judgment-debtor. The Sections 278 to 283 of the Code deal with persons who at the time are strangers to the execution, while Section 244 deals with parties and their representatives, and Shankar Dat was none the less a representative because he was brought in as such after decree and while execution-proceedings were in progress. That being so, we are of opinion that the objection he had filed on January 14th, under Section 278 of the Code as a stranger to the execution-proceedings, fell to the ground and was superseded by the proceedings under Section 244, in which Shankar Dat occupied the position of a representative. That objection was henceforth useless and infructuous, and might well have been laid aside by the Court as if it were a dropped proceeding. We hold that subsequently to March 17th, 1892, there was but one proceeding pending in the execution Court and not two proceedings, and though some orders of adjournment were nominally passed on the objection of January 14th, 1892, and a copy of the order disallowing the objection was written on it also, still in our opinion those acts of the Court were perfectly unnecessary and superfluous. There was but one order and one only on September 6tht 1892, and it did not become two orders because it was written on the petition of objection of January 14th, as well as on that of March 25th, 1892.
7. Of course if it had been the case that before the proceedings under Section 244 bad commenced, i.e., before Shankar Dat had been constituted a legal representative by the application under Section 234, any order allowing or disallowing the objections made by him under Section 278 had been passed, that order made under such circumstances would have been conclusive if no suit had been instituted within one year to contest it. But once a person has been made a representative of a deceased judgment-debtor all questions between him and the other party relating to the execution of the decree must be decided under Section 244, and none the less so because that person while a stranger to the execution may have filed an objection under Section 278 of the Code. In our opinion such an objection at once disappears on the commencement of proceedings under Section 244 and any formal order passed on it is superfluous.
8. For the above reasons we are of opinion that the appellant could not have maintained a suit to establish a right to the property in dispute claimed by him in his objection of January 14th, 1892. We therefore hold that the preliminary objection taken by Mr. Durga Charan, which proceeds on the supposition that the order passed on that objection is conclusive within the meaning of Section 283, cannot be supported.
9. We accordingly proceed to hear the appeal on the merits.
10. I entirely concur in the conclusion and reasons of my brother, and wish only to add a few words to emphasise my opinion on the nature of the proceedings enquired into. The judgment-creditor was throughout dominus litis. It was in his power and at his own choice to proceed with his execution at large without putting upon the record a representative of the judgment-debtor. In such a case a third person, who was neither a party to the suit nor a representative, could have taken objections in the proceedings under Section 278. On the other hand, it was in the option of the judgment-creditor to proceed under Section 234 against a representative of the deceased in possession of the assets in relation to which execution is sought. In my opinion the moment the judgment-creditor chose to introduce into these execution-proceedings the appellant in this case as a representative holding assets of the original judgment-debtor, he, in point of law, absolutely extinguished any proceedings which bad been taken under Section 278. The current of decisions is clear. Section 278 applies only to persons who are not parties to the proceedings. The moment a person who had taken an objection under Section 278 was made by the decree-holder a party to the proceedings he was excluded from the category of persons to whom alone Section 278 applies and included in the category of persons to whom no other section than 244 is applicable. I conceive therefore that there was not in point of law any proceeding under Section 278 before the Judge at the time when he affected to deal with the objection under that section and that all he said or did under that section is an absolute nullity. We now proceed to deal with the appeal.
11. On the 4th of February 1895 the appeal was disposed of, being decreed with coats with reference to a previous decision of the same Bench in F. A. No. 268 of 1892, decided on the 29th of January 1895.