1. A suit (183 of 1874) was instituted by first defendant against Lakshmi, her mother. The latter died pending the suit, and this plaintiff, who had been adopted by Lakshmi and her husband, was substituted as her representative.
2. Lakshmi and her husband Samu Bhatta had five daughters, and Samu Bhatta had left a bequest of 8,000 rupees to be divided among them as their marriage portions. This sum had come, it was alleged, to the hands of Lakshmi, and she had neglected to pay the amount due to the first defendant in the present suit, who, as already stated, was the plaintiff in the Suit 183 of 1874. In special appeal in that suit it was decided that plaintiff, in his representative character, was liable to the extent of assets of Lakshmi that might have come to his hand.
3. There was admittedly no property of Lakshmi in plaintiff's hands available for attachment, but the law provides in that case--Section 252, Civil Procedure Code--that execution may be issued against the judgment-debtor to the extent of the property of the deceased which he has not duly applied, if the judgment-debtor fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come to his possession.
4. No investigation was made, and no proof offered in the execution proceedings to warrant any execution against the judgment-debtor personally
5. Property, however, was attached which the present plaintiff claimed as belonging to him in his own right. Without any investigation, the District Munsif rejected his claim, referring him to a regular suit. The property was sold, and the plaintiff has now brought the present suit to set aside the sale and recover the property. Second defendant was the purchaser at the Court auction.
6. The main question in the suit, and the only one which calls for consideration in this appeal, is, whether this suit is maintainable having regard to the procedure provided in Section 244 of the Civil Procedure Code, which requires that all questions arising to the parties to the suit in which the decree was passed, or their representatives, and relating to the execution of the decree, must be disposed of in execution and not by separate suit.
7. The District Munsif and the District Judge in appeal have decided this question in favour of plaintiff. The District Judge observes, the person who put in the claim was a different person in the eye of the law from plaintiff as legal representative of Lakshmi, and he refers to a decision of the Calcutta High Court (Sheik Wahid Ali v. Mussamut Jumayi) 2 B.L.R. 73 reversed by the P.C. in 11 B.L.R. 149 on this point.
8. We should be disposed to agree with this view were it not for a decision of the Privy Council in Chowdry Wahid Ali v. Mussamut Jumayi 11 B.L.R. 149 in which it was held that, in a case in which a decree had been properly passed and proceedings taken under it to obtain execution against a party in a representative character, there seems to be no good reason for saying that he should not be considered a party to the suit, with respect to any question which may arise between him and the other parties relating to the execution of the decree, within the meaning of the 11th clause of the Act of 1861; and it was only on the ground that by an error in procedure there was no formal decree against the respondent that their Lordships dismissed the appeal in that case, the effect of which was to allow the respondent the relief she had sought in the fresh suit. The circumstances were almost precisely on a footing with those in the case before us. We have endeavoured to find some distinction between this case and that before the Privy Council already quoted, as we cannot but feel that the grossly irregular conduct of the District Munsif in the execution of the decree in Suit 183 of 1874 (Special Appeal 556 of 1875), in rejecting, without enquiry, the application of the present plaintiff to have it determined whether the properties attached were properly liable to the decree, has led to great injustice. But we have reluctantly arrived at the conclusion that the case before us is not to be distinguished from the case cited. The plaintiff might have appealed against the order, and the order, though most irregular, must be regarded as one passed under Section 244 on a question arising in execution between persons who, in the opinion of the Judicial Committee as expressed in the other case, are to be regarded as parties to the suit. No separate suit can lie therefrom, and we must reverse the decrees of the Courts below and dismiss plaintiff's suit. Under the circumstances, we shall direct that each party do bear his own costs throughout.