1. This is a Letters Patent appeal arising out of certain objections raised by one of the judgment-debtors in the execution department. In 1915 two persons executed a simple mortgage-deed of a house in favour of Lalman. In 1922 a sale-deed of the equity of redemption was executed by the mortgagors who in 1924 purported to transfer their rights under the sale-deed to one Musammat Hyderi Begum. Some time after this one of the mortgagors died. A suit was brought for sale on the mortgage deed in 1927 by one Sukh Earn, the representative of Lalman, against the surviving mortgagor and the heirs of the deceased mortgagor, including the present appellant Ibrahim. The suit was brought almost at the close of the period of limitation. In the written statement an objection was taken that it was defective for non-joinder inasmuch as the transferee in whom the property had vested had been left out of the suit. Presumably because it would have been too late to implead her, no steps were taken to bring her on the record. The position taken up by the plaintiff, however, was that the transfers of 1922 and 1924 were null and void and did not pass the property to Hyderi Begum. The Court appears to have framed an issue relating to the validity of the said transfer and decided that issue in favour of the plaintiff. A preliminary decree for sale was passed on February 29, 1928, against the defendants, including the appellant Muhammad Ibrahim. This was followed by a final decree. In the execution department Muhammad Ibrahim took an objection that the property had vested in Hyderi Begum who was not impleaded within the period of limitation, (sic) that be being one of the heirs of the deceased is entitled to claim the property in his own right and that the property could not be sold. He also took the objection that the application for execution which was filed by Bhagwan Das claiming to be the legal representative of Sukh Ram, who had died, could not be proceeded with until a succession certificate had been obtained. It was further pleaded that the applicant Bhagwan Das was not the representative of the deceased decree-holder and had no locus standi to maintain the application.
2. The first Court held that the application could not be entertained for want of a succession certificate and also expressed the opinion that there was no evidence to prove that Bhagwan Das was the representative of the deceased decree-holder. It accordingly dismissed the application. On appeal the lower Appellate Court took the view that the decree for sale having been passed against Muhammad Ibrahim it was no longer open to him in the execution department to raise the question of the title of Hyderi Begum, his predecessor. It also considered that it was wholly unnecessary to decide whether the applicant Bhagwan Das was entitled to execute the decree or not, and gave him time to obtain a succession certificate holding that if he does produce the certificate he would be entitled to proceed with the execution and if he does not, he would not be so entitled. On appeal to this Court a Judge has come to the conclusion that there is no question of res judicata in the present matter at all, particularly as it was admitted on behalf of the respondent Bhagwan Das that Muhammad Ibrahim had been impleaded merely in his capacity of a judgment-debtor as one of the heirs of the original mortgagor, Musammat Wazir Begum. The learned Judge has accordingly held that Section 47, Civil Procedure Code, has no application nor does Order XXI, Rule 58, Civil Procedure Code, apply to a mortgage decree.
3. Dealing with the question of the non-production of the succession certificate the Judge has expressed the opinion that the Court below had not ordered the execution of the decree, nor had ordered any process to issue, but had merely decided a preliminary objection raised by the judgment-debtor, particularly as the objection as to the non-production of the succession certificate had not been raised till the judgment came to be written.
4. It seems to us that the Judge of this Court has taken the correct view in holding that the question of res judicata does not arise at the present stage. The applicant Muhammad Ibrahim is setting up a new title derived from Musammat Hyderi Begum, who was no party to the suit, and is not setting up his title as one of the mortgagors. The question whether his defence can at all be barred by the principle of res judicata will arise properly when a suit between the parties as to the question whether title has passed to the auction-purchaser or not arises. The position of Muhammad Ibrahim is really that of a stranger to the proceeding and his remedy would have been if it were a case of an objection under Order XXI, Rule 58, but as it was a mortgage decree for sale, that rule has no application, and the question of the title of Muhammad Ibrahim cannot be decided in the proceeding under Section 47, Civil Procedure Code. We therefore leave the question open whether Musammat Hyderi Begum had or had not Validly acquired an interest in the property open.
5. We are, however, of the opinion that this is not a case to which Section 214, Succession Act, can apply, and that accordingly there was no necessity whatsoever for the applicant to obtain a succession certificate. Section 214(1)(b) prevents the Court from proceeding upon an application of a person claiming to be so entitled, to execute against such debtor, a decree or order for the payment of his debt, except on the production, by the person so claiming, of a succession certificate. But the application for execution must be for obtaining an order for the payment of his debt. The personal remedy under the mortgage-deed had become barred by time long before the suit was brought and the mortgagee is simply entitled to a decree for sale of the mortgaged property. It is, therefore, difficult to hold that the application for the execution of the mortgage decree for realization of the amount by sale of the mortgaged property is an application to obtain an order for the 'payment' of his debt. No succession certificate is therefore necessary at all. We do not think it necessary to decide in this case whether even if Section 214 had applied and a succession certificate had been obtained subsequently by the applicant, it would necessarily have a retrospective effect so as to make a previous application filed by him in time as a valid application, even though the certificate was granted after the period of limitation had expired.
6. The question of the status of the applicant must therefore be decided by the lower Appellate Court. He was entitled to maintain the application for execution only if he can satisfy the Court that he was the legal representative of the deceased decree-holder within the meaning of the provisions of Order XXII, Rule 5, Civil Procedure Code. The trial Court recorded a finding against the applicant, but the lower Appellate Court has not decided this point.
7. We accordingly allow this appeal and setting aside the order of the learned Judge of this Court as well as the decree of the lower Appellate Court, send the case back to that Court for disposal according to law. The costs incurred heretofore will abide the result. As the appeal was not decided on a preliminary point, the appellant is not entitled to a refund of the court-fee.