1. The first plea taken in second appeal is that no suit will lie, with reference to the provisions of Section 244 of the Civil Procedure Code. The plea is valid. The matter in dispute is one between the parties to the suit in which the decree was passed, and relates to the execution, discharge or satisfaction of the decree. The decree was a decree against the estate of Imrit Kuar, and the question is substantially whether the property is part of that estate and liable to be taken in execution of the decree, or is property which the defendants can claim in their own right and something apart from Imrit Kuar's estate.
2. The decision of the Privy Council in Chowdry Wahed Ali v. Musammat Jumaee 11 B.L.R. 155 is an authority for holding that a question of this nature is one to be determined in the execution of the decree. Their Lordships remark: 'It is obvious that a party in a representative character is so distinctly a party to the suit that under certain conditions his own private property may be attached and sold. It is true that to fix him with this liability it must be shown that he has received property of the deceased, of which he has failed to prove a proper disposition. But these things are all cognizable and proper to be ascertained in the suit in which the decree is made during the progress of the execution proceedings founded upon such decree.'
3. The case of Shankar Dial v. Amir Haidar I.L.R. 2 All. 752 is distinguishable. In that case the judgment-debtor objected to the attachment of certain property on the ground that such property was in his possession as trustee for an endowment, and not in his own right, and it was held that the objection, although made by the judgment-debtor, was one properly falling under Sections 278-283, Civil Procedure Code, and the order upon it was one not appealable, but that the remedy was by suit under Section 283. The case of Nath Mai Das v. Tajammul Husain supra p. 36 is also similarly distinguishable. The dispute in the case before us is not one of the nature to be dealt with under those sections of the Civil Procedure Code; but purely a question between parties to the suit and relating to its execution. The appeal is decreed, the Lower Appellate Court's decree set aside, and the suit is dismissed with costs.
4. I concur entirely, not only in the conclusion at which my learned brother Oldfield has arrived, but also in the reasoning which leads up to that conclusion. I, however, wish to add that the only case of importance cited against the view taken by us is Kanai Lall Khan v. Sashi Bhuson Biswas I.L.R. 6 Cal. 777. That case is not on all fours with the present, but there are a great many dicta in the ealier part of the judgment which have a bearing upon this case, and go to contradict the principle laid down by my brother Oldfield to-day. I have studied the judgment, and reading the Privy Council case cited therein, I confess, with due deference, I cannot place the same interpretation as that adopted by the Calcutta Court. It seems to me that the turning point upon which the application of the rule contained in Section 244 of the Civil Procedure Code barring adjudication in a regular suit depends, is whether the judgment-debtor in raising objections of execution of decree against any property pleads what may analogically be called a jus tertu, or a right which, although he represents it, belongs to a title totally separate from that which he personally holds in such property. If in the future regular suit he can plead no title other than that which he himself personally held in his own right at the time when execution was sought against the property, the bar provided by Section 244 of the Civil Procedure Code would operate, because such questions could be adjudicated upon in proceedings relating to the execution of the decree within the meaning of Clause (c) of the section read in the light of the Privy Council ruling to which reference has already been made. On the other hand, if the judgment-debtor pleads a title which he does not hold in his own right, but merely as a trustee of an interest totally different from his own, the mere identity of the person of the judgment-debtor would not bar the adjudication upon a right which could not be adjudicated upon in the execution proceedings, and for this reason, that the judgment-debtor as such had no interest in saving the property from the consequences of the execution. This I understand to be the ratio decidendi adopted by my brother OLDPIELD in Shankar Dial v. Amir Haidar I.L.R. 2 All. 752 : which I followed in Nath Mal Das v. Tajammul Husain supra p. 36. I still adhere to that view, and therefore concur in the order proponed by my learned brother.