1. The suit out of which this appeal arises was brought by the plaintiffs to recover possession of certain immovable property which was sold by public auction on August 20th 1889, in execution of a decree held by the respondent as representative of her deceased husband Maharaja Radha Prasad Singh. There were originally three plaintiffs to the suit, namely, Mata Dayal Rai, Musammat Prayagi Kunwar and Musammat Bartana Kunwar. The suit of the third was dismissed by the lower Court. She is not concerned in this appeal. A decree was given in favour of Mata Dayal and of Musammat Prayagi. The present appeal is against that decree, the sons of Mata Dyal who died after decree having been substituted for him as respondents. The early history of this litigation, which has now lasted since 1855, will be found fully reported in the judgment of their Lordships of the Privy Council in the case of Radha Prasad Singh v. Lal Sahab Rai (1890) I.L.R. 13 All. 53: S.C. L.R. 17 I.A. 150. The subsequent facts are, that the decree of March 1st 1877, by which the mesne profits due to the Maharaja were for the first time ascertained was, after many interlocutory proceedings arising out of objections taken by the parties whom it was sought to make liable under the decree of March 1st 1877, transferred to the Collector of Ghazipur for execution under the provisions of Section 320 and the following sections of the Code of Civil Procedure in August 1884. The Collector, with the consent of the parties against whom the decree was being executed, sold some 13 villages to the Maharaja for Rs. 75,000 in reduction of the decree, and the Maharaja consenting to accept Rs. 6,50,000 (about one half of the amount due) in full discharge of the decree to him, the Collector made, with the consent of the parties against whom the decree was being executed, arrangements for paying off the Rs. 6,50,000 by instalments during a term of twenty years. This arrangement was fairly successful for a couple of years; but eventually the persons against whom the decree was being executed interfered with the collections, themselves refused to pay and instigated their tenants to withhold their rents from the official appointed by the Collector to manage the estate. The result was, that by order of the Commissioner the attempt to save the attached property from sale was abandoned, and a sale under the decree of March 1st 1877, took place on August 20th 1889. The sale produced only Rs. 6,02,500--less than half the amount of the decree with interest.
2. Among the parties whose property was sold and purchased by the decree-holder, the Maharaja, were the plaintiff Mata Dyal Rai now represented by his three sons respondents) and Musammat Prayagi Kunwar now also represented since her death by the sons of her co-plaintiff Mata Dyal. The object of their suit has already been set forth. At the hearing of the suit several matters were argued and adjudicated on with which we have no concern now. The plea on which this appeal has been fought is that the plaintiff had no concern what ever with the litigation till they were brought in during 1881 as parties who were liable under the ascertainment of mesne profits decree of March 1st 1877.
3. They were brought in then as representatives of Dawan Rai. Now there can be no doubt that Dawan Rai was one of those impleaded in 1855, and that he was one of the 54 defendants who appealed to the Sadr Diwani Adalat against the decree of the District Judge of April 1856.
4. But it is alleged for the plaintiffs, and is now admitted by the respondents' learned Counsel to be the fact, that Dawan died in 1862. The final decree of the Sadr Diwani Adalat on review was passed on April 7th 1866, four years after Dawan's death. No one was brought on the record of the ease before the Sadr Diwani Adalat as his representative, and it is admitted that no one representing Dawan was impleaded in the proceedings which terminated in the mesne profits decree of March 1st 1877. The plaintiffs here were brought on as Dawan's representatives some time in 1881, some four years after the decree of 1877. Now on the above state of facts, it seems to me to be hardly possible to distinguish the case of these respondents from that of the defendant Lal Sahab Rai in the case before their Lordships of the Privy Council mentioned above. Indeed the case of these respondents seems stronger, for though their ancestor Dawan Rai was a party to the decree in favour of the Maharaja, passed in 1856, and to the Sadr Diwani Adalat's decree in appeal in 1859, he was dead before the final decree of the Sadr Court (the decree on review) was passed in April 1866, and no one was brought on to represent him in the mesne profits ascertainment proceedings. These plaintiff's accordingly are primd facie, not bound by either the decree of April 1866 or the decree of March 1877, neither they nor any person whom they represent having been parties to either of those decrees. It was on that ground that the lower Court gave plaintiffs a decree.
5. For the appellant it was contended that the suit was not maintainable, that it was forbidden by the provisions of Section 244 of the Code of Civil Procedure, and Mr. Conlan also with great earnestness contended that the respondents had estopped themselves from instituting such a suit.
6. Now as to Section 244 the argument is that these plaintiffs when brought in in 1881 as representative judgment-debtors, liable under the decree of 1877, should at once have raised the objection that they were not then brought on the record to represent any one who had been a party to the decree of 1877. Had they raised the plea then it may be they could have been successful; but it is contended they are too late now, and cannot raise it in a separate suit. Reliance is placed for appellant on the last clause of Section 244. It seems to me, however, that that clause is not in point. It clearly refers to a case where there is a dispute between two or more persons as to which of them is the representative of a person who had been a party to the suit. It cannot, I think, be held to include a case in which there could be no representative, as there was no party to be represented, and therefore no question as to who was the representative. Sections 367 and 368 of the Code were also reforred to by the learned Counsel, but I cannot see how they affect the question.
7. The chief argument of the learned Counsel was that the respondents had estopped themselves by their conduct from instituting the suit. He pointed out that they had submitted in silence from 1881 to 1889 to being treated as judgment-debtors liable under the decree of March 1st 1877, that they bad never taken any objection to the position assigned to them, that they jointly with hundreds of other judgment-debtors had put in many petitions in the execution proceedings after 1881, in the Shahabad and the Ghazipur Courts, making such objections as are usual in the case of judgment-debtors liable under the decree then being executed, e.g., as to the amount calculated to be due on the decree and the like, but that these plaintiffs had never, in any of those numerous petitions, given the slightest hint that they really were not the representatives of any judgment-debtor and were consequently not liable under the decree of 1877; that they similarly joined in other petitions to the Collector when the execution proceedings were transferred to him, and joined in the proppsal to the Collector that he should take over and manage the judgment-debtor's property holding it till the decree was paid off, and that in all these petitions and proceedings the plaintiffs remained silent as to their real position, and forebore to allege that they did not represent any defendant judgment-debtor liable under the decree of March 1st 1877. The estoppel is then put in this way, that by the continuous silence of the plaintiffs from 1881 to 1889, and their submission without objection to the execution proceedings taken against them as representatives of Dawan (a person who was not a judgment-debtor), they had permitted the decree-holder to believe a thing to be true, which was not true, namely, that these plaintiffs were judgment-debtors liable under the decree of 1877 as representatives of Dawan Rai, and to act upon that belief. The act which the decree-holder is said to have done in consequence of that belief is that he consented to forego his claim to about half the amount due to him under the decree of March 1st 1877, amounting to more than 15 lakhs, and to accept a transfer of villages valued at the sum of Rs. 75,000 and a payment of 61/2 lakhs of rupees to be paid by annual instalments of Rs. 34,240 in nineteen years, the property of the judgment-debtors to be placed under the Collector's management.
8. It is contended that if the decree-holder had known that these plaintiffs were not liable to him under the decree of 1877, he would not have accepted this arrangement. In support of this argument it is pointed out that these plaintiffs joined with some hundreds of other persons liable under the decree in praying the Collector to take action to save the property from sale by taking it under his management. It is also said that had he known of the true position of these plaintiffs, the decree-holder would have insisted on immediate sale. Neither of these matters appears to me to have any weight. The assent of the person against whom the decree was being executed to the Collector taking their properties into his hands, was unnecessary and superfluous, such assent not being necessary, and as to the decree-holder not insisting on an immediate sale, it is sufficient to say that it was not in his power so to insist, everything depending on the discretion of the Collector. As to the abandonment of half his claim by the decree-holder, I am unable to see that his action in that matter was in any way influenced by the belief that these plaintiffs (who are only two among some hundreds) were liable to him under the decree of March 1877. Indeed it appears that it was pressure from the Collector, and not any such belief that induced the decree-holder to forego half his claim. For I find it recorded by the Collector in the preamble to the conveyance by which he sold 13 villages to the Maharaja for Rs. 75,000 that on inquiry it was found that the profits were not sufficient for the satisfaction of the decree, and the sale of the whole property must take place, the amount due exceeding 15 lakhs of rupees. The document then proceeds:--'After discussion I induced the decree-holder to consent to agree to a transfer in his favour of the undermentioned mahals belonging to the judgment-debtors in consideration of Rs. 75,000 and to payment to him in 19 years or earlier of Rs. 6,50,000 out of the profits of their other property, which should be placed under the Collector's superintendence, by annual instalments of Rs. 34,210-8-5 from 1293 Fasli.' This deed is dated February 22nd 1886, and is record No. 409 in First Appeal No. 103 of 1896. So it seems to me that that which really induced the decree-holder to abandon half his claim was pressure put on him by the Collector and the knowledge that it was not possible to obtain full satisfaction of the decree, and not the facts that these plaintiffs had not disclosed their true position. That it was impossible to satisfy the decree in full is shown by the fact that at the sale on August.20th 1896, the attached property, when put up to auction, fetched little more than six lakhs. The relinquishment of nearly half his claim under the decree of course was no longer effectual when the management of the estate by the Collector had to be abandoned owing to the contumacious resistance offered to the collection of rents by the judgment-debtor.
9. Further, I would add that our attention was not invited to any evidence on the record tending to show that the decree-holder as a matter of fact temporarily abandoned half his rights under the decree because he believed that these two respondents were liable to him under that decree. We were asked to infer that such was the case. I am not prepared to draw such an inference, I see no sufficient materials for it anywhere on the record. I do not believe that if the decree-holder had known of the true position of these plaintiffs he would for that reason have refused to abate his demands under the decree. The reason why he did so was, I believe, (1) because the Collector pressed him to do so, and (2) because he saw no chance of his ever being able to get 15 lakhs out of the judgment-debtor's property. And I would add that even if these respondents were aware of their true position during the execution proceedings (which, in my opinion, is most improbable), I fail to see that it was incumbent on them to have informed the Maharaja of it. They owed him no such duty. It was he who had improperly forced them into Court as representatives of a non-existent judgment-debtor for the purpose of compelling them by seizure of their property to discharge a non-existent debt.
10. I do not think it necessary to enter into the question as to whether by law an estoppel could arise under the above circumstances. I find as a matter of fact that there was no estoppel.
11. For the above reason 1 am of opinion that this appeal fails. I would dismiss it with costs.
12. I concur.