1. The question evidently intend ed to be referred is whether an appeal lies against an order passed with regard to a party to a suit against whom there is a personal decree, in respect of any claim he may set up to hold property attached in execution of that decree, as a trustee on behalf of third persons not parties to the suit. The answer to the question depends upon whether such a claim falls under Section 244, Civil Procedure Code or under Section 278. It is conceded that the Privy Council decision relied on in Upendra Bhatta v. Ranganatha Bhatta I.L.R(1893) .M., 399 does not touch the point. The addition of, the words ' or their representatives ' to the words ' parties to the suit ' in Section 244 as it orginally stood i really beside the point where the claim is put forward by the representative, not as representative of the parties, but on behalf of third persons. A large number of decisions have been cited but a good many of them, in my opinion, throw no light upon the question. They deal with the converse case of a trustee sued in his representative. character claiming property and follow the principle laid down by the Privy Council in Chowdhry Wahed Ali v. Mussamat Jumaee. I.L.R(1893) . M., 399 Although that case was regarded in Kuryali v. Mayan I.L.R.(1886) M., 117 (a case which involved both the present question and its Converse), as an authority for the wider proposition ultimately laid down in Upendra Bhatta v. Banganatha Bhatta I am of opinion that, on examining the reasons given by the Privy Council for its decision, it will be found that they do not support the view taken in the latter case? but rather the reverse. Their Lordships say:' It is obvious, therefore, 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.'
2. These reasons cannot apply to what I have termed, and shall for brevity's sake continue to term the ' converse case.' Property which a judgment-debtor holds as a trustee can never be liable1 for claims against the judgment-debtor personally. In the Privy Council case just cited the question was whether certain property was the assets of the deceased party or liable as such. This is clearly a question falling under Section 244 as between the parties to the suit in the strictest sense of the term--taking it, that is, that the defendant was a party to the suit only in his representative capacity.
3. I do not think it necessary to refer at length to all the cases cited', as they are not unanimous and the distinction I have pointed out between the present question and its converse is not always clearly borne in mind. I think, however, that there can be no doubt that the balance of authority is in favour of the view that the claims of third parties, whether put forward by themselves or by a party to the suit, must be dealt with under Sections 278--283 and not under Sectuib ' 244. A considerable number of these decisions are collected and considered in Roop Lall Dass v. Bekaani Meah I.L.R.(1893) M., 399. I agree with the remarks of Norris and Beverley, JJ., at page 444, that the test whether the order as to the objection falls under Section 244 or not, is whether all the necessary parties are be' fore the Court or not. If they are not, those not before the Court are not bound by any order passed and can take separate proceedings thereby tending to an increase of litigation. It appears to me obvious that in a suit where a person who happens to be a trustee is proceeded against for a mere personal debt, the beneficiaries who could under no circumstances be parties to such a suit, are not in any way before the Court. The trustee in no way represents their interests--to which his own is necessarily adverse in such a suit--and there is no machinery by which they can be added as parties to the suit in execution proceedings.
4. In other words, Section 244 presupposes that the questions with which it deals are such questions as can be finally determined in the execution proceedings. If they cannot, I think, it has no application. This view is in accordance with the principle that a Court should look to the substance of the objection, and not to the accident that it is put forward by A rather than by B. If it is, in substance, an objection that falls under Section 278, it shoud be dealt with under that section. This view is in accordance also with the dictum in Ravunni Menon v. Kunju Nayar I.L.R(1886) . M., 117 and a number of authorities among which may be mentioned Nath Mal Das v. Tajammul Hussain I.L.R.(1884) 7A., 36 Bam Ghulam v. Hazaree Kuar (1885) I.L.E. 7 A., 547 Seth Chand Mal v. Durga Dei I.L.R.(1889) A. 313 (per Edge, G.J.,) Bahori Lal v. Gouri Sahai (1886) I.L.E., 8 A., 626 as well as the case already referred to, I.L. R., 15 C, 437, where the authorities are discussed. See also Murigeya v. Hayat Saheb (1898) I.L.E., 12 A., 23 B where Parsons, J., who took the contrary view, admitted that the balance of' authority was against it. In Rajrup Singh v. Ramgolam Roy (1888) I.L.E., 16 C 1., the same view is taken and at page 6 the distinction between the two classes of cases is clearly brought out. In Punchanan Bundopadhya v. Rabia Bibi (1890) I.L.E., 17 C, 711 the question was what I have called 'the converse case ' and the opinions of the majority as to the construction of Sections 278--283 must be regarded as merely obiter. I think too much stress was laid by the learned Judges who constituted the majority as well as by Parsons, J., in Murigeya v. Hayat Saheb I.L.R.(1893) M., 399 on the words in Section 278 'in all other respects as if he was a party to the suit.' This is an enabling and not a restricting clause, in my opinion; and if it were a restricting clause, the question would still remain--is a judgment-debtor, raising an objection in the character of representative of third persons not before the Court,' a party to the suit at all? I think he is not. It may be pointed out, in addition to what has been already, said, that the veiw that a jus tertii set up by a judgment-debtor must be dealt with under Section 244, Civil Procedure Code, leads to this anomaly--that the trustee who has no real interest in the property attached may resort to appeal and second appeal, while the beneficiaries, if they put forward the claim themselves under Section 278, have no right of appeal at all, and are driven to a separate suit to establish their claims. It would further tend in practice to lead to great complications, as the trustee might proceed under Section 244, while the beneficiaries or some one in their behalf (e.g., a joint trustee who is no party to the suit) might simultaneously conduct proceedings under Section 278. This seems to be a sufficient answer to the remarks of Prinsep and O'Kinealy, JJ., in Panchanun Bundopadhya v. Rabia Bibi I.L.R.(1886) M., 117 that Section 244 should be ' liberally construed so as to prevent litigation.' The view for which I am contending would, I think, be best calculated to have that effect.
5. My answer to the question proposed is that, when a person against whom there is a personal decree claims attached property on the ground that he holds it as trustee for persons not parties to the suit, such claim falls under Section 278 and not under Section 244, Civil Procedure Code, and no appeal lies against any order passed on such claim by the Court executing the decree.
6. I agree with Mr. Justice O'Farrell in his conclusion as well as his reasons for arriving at it on the question referred. It was contended that the case came within Section 244 of the Civil Procedure Code because a trustee represents the beneficiaries. But, though the persons beneficially interested need not, ordinarily, be joined in a suit against a defendant as trustee, executor or administrator (Section 437, Civil Procedure Code), he must be impleaded as such, otherwise the suit would be properly framed, and a decree passed against him simply would not be a decree against him as trustee, executor or administrator. The case referred to us, however, is not a case of a judgment-debtor against whom a decree has been passed as trustee or who was sued as such, but of one against whom a decree has been passed, and the suit brought, in his own personal capacity. The suit not having been brought, nor the decree passed, against him in his personal as trustee, he is, as such trustee (in which capacity he makes the claim to the attached property), in my opinion, no party to the suit.
7. I concur. V This appeal coming on for final hearing on the 7th November 1899 before their Lordships Shephard and Subrahmania Aiyar JJ. the Court delivered the following
8. The appeal is dismissed with costs.