1. This revision raised a question of law on which there does not appear to be any direct authority. The matter is not, it further appears, covered by any direct rule of procedure contained in the Civil Procedure Code.
2. The facts are these: One Pancha was indebted to one Jugal Kishore. Panoha having died Jugal Kishore brought a suit to recover his money against Pancha's widow Mt. Kota. When decree was passed, the widow was pregnant and she gave birth to a child, the petitioner before me, a few months later. The decree-holder sought to execute his decree against the widow and obtained an attachment of certain properties. Pancha's brother Sancha for himself and as the guardian of his nephew, the petitioner Batuk Nath, preferred an objection apparently under Order 21, Rule 68, of the Civil Procedure Code and it succeeded. The decree-holder brought a suit under Rule 63, Order 21, Civil P, C., and this suit was dismissed for default. His appeal was still pending before the District Judge when that learned officer disposed of the present matter.
3. Having been unsuccessful in executing his decree against Mt. Kota, the decree-holder's representative (decree-holder having since died) sought to execute the decree by bringing Batuk Nath on the record as the legal representative of his deceased father. Batuk Nath came forward with a number of objections, only one of which has been so far decided, viz., whether he could be properly brought on the record as the legal representative of the deceased Pancha. The Courts below have agreed that Batuk Nath, if the execution is continued against him, would be entitled to prefer any objection that he may have to the execution of the decree.
4. The sole question for decision by me is whether the Courts below were right in allowing the execution to proceed against Batuk Nath.
5. As already mentioned there is no clear authority either way on the point and the matter is not covered by any clear rule of enacted law. The matter is one of first impression.
6. Mr. Das in his able argument has urged that substitution of Batuk Nath would really mean passing of a decree against the petitioner and that the Court below was not justified in so acting. He relies on the case of Ashi Bhusam Dasi v. Peladam Mondol (1918) 18 CWN 178. In that case a creditor sued an infant on the allegation that he was the adopted son of the deceased debtor. The infant was impleaded under the guardianship of the widow of the deceased. Subsequently it transpired, as the result of another litigation, that the infant had not been adopted by the deceased. The creditor then sought to execute the decree against the widow of the deceased on the ground that she represented the estate and that she had virtually been a party to the suit. The learned Judges repelled the contention and held that a decree against a person who was not the legal representative of the deceased could not be turned into a decree against the widow of the deceased.
7. The facts of this case are entirely different. Here the suit was brought against a person who was then de facto and de jure legal representative of the deceased debtor. The decree was therefore obtained against a person who represented the estate of the deceased. On the birth of Batuk Nath, by operation of law, the estate devolved on him and he became the sole representative of his deceased father. The case is very similar to the illustration given by the learned Counsel for the respondents, viz. where subsequently to the passing of a decree against a widow, she makes an adoption and thereby divests herself of her husband's property, the decree is treated as binding on the son unless of course he can show that the decree was obtained by collusion or fraud. Again, when an estate is represented by a Hindu widow and she dies and a reversion comes in, the decree passed against the widow is treated as binding on the reversioner except under circumstances which need not be considered here. The present case is really very similar to the illustration given by Mr. Asthana. On the analogy of the provisions of Order 22, Rule 10, the person who really represents the estate at a particular moment ought to be treated as the legal representative of the deceased debtor.
8. I am of opinion that the Courts below were right. Before I. leave I would like to point out with some emphasis that no other question so far has been decided by the Courts below, and it is open to the applicant to put forward any other objection that he may have to the execution of the decree, e.g., a plea of res judicata, etc.
9. The petition in revision is dismissed with costs.