1. This is a second appeal by Badri Prasad, defendant 1, against a decree of the lower appellate Court granting a declaration that the plaintiff-respondent Mt. Janki is the owner of a house which appellant Badri Prasad had got sold in auction sale to respondent 2. Badri Prasad obtained a simple mortgage decree in Suit No. 397 of 1930 against one Debi Dayal and the property mortgaged was sold and the sale proceeds were insufficient. Debi Dayal died at this stage and under Order 34, Rule 6, as the lower appellate Court finds, Badri Prasad obtained a decree against Mt. Janki, plaintiff, who is the step-mother of Debi Dayal. The decree was against the assets of Debi Dayal in the hands of Mt. Janki. The assets in question comprised the house in suit. Mt. Janki made an objection that the house belonged to her personally of the had purchased it from Debi Dayal by a sale deed dated 9th April 1930. Her objection was disallowed by the execution Court and the execution Court treated the objection as being one under Order 21, Rule 58, and directed Mt. Janki to bring a regular suit. She brought the present suit which was dismissed by the trial Court and has been decreed by the lower appellate Court. The main point taken on behalf of the appellant is that under the Full Bench ruling reported in 12 All 3131 the objection of Mt. Janki should not have been treated under Order 21, Rule 58, but should have been treated as one under Section 47, Civil P.C., and that an appeal lay from the order dismissing her objection, but no regular suit lay and therefore the present suit should be dismissed.
2. It appears to me that the case is very similar to that reported in the Full Bench ruling. Learned Counsel for the respondents attempted to draw some distinction on the ground that in the Full Bench ruling the person who was the legal representative, Mt. Durga Dei, had taken no objection to being made a representative of the deceased judgment-debtor. She had been cited as a legal representative in her own person and as guardian of her minor son. The ruling however does not appear to attach weight to the fact that she took no objection and no distinction would arise if she had taken an objection and her objection had been dismissed. The grounds on which the Full Bench ruling proceeded was that a person who was a legal representative was a person who was required to account to the execution Court for the assets of the deceased in the hands of the legal representative and that the execution Court was bound to enquire into the extent of those assets. The provision of law which applied at that time was Section 234, Civil P.C., and the words of that section have not been varied in the present section, Section 50, Civil P.C. The ruling was based on this point as is shown at p. 321 in the judgment of Straight, J. and at p. 323 in the judgment of Sir John Edge, Chief Justice. In the latter judgment at the top of p. 324 there is a specific mention of the case where a legal representative would set up a claim that he is beneficially entitled by purchase. This is precisely the claim which has been set up by Mt. Janki in the present case.
3. I find therefore that the present case cannot be distinguished from the case dealt with in the Full Bench ruling. In the Full Bench ruling the question was whether an appeal would lie from the orders in the execution Court and it was held that those orders were passed under Section 244, Civil P.C., which corresponds to the present Section 47, Civil P.C., and that a; subsequent separate suit would be barred. For these reasons I allow this second appeal with costs and I dismiss the suit of the plaintiff with costs throughout. Permission is granted for a Letters Patent appeal.