1. The appellant was the plaintiff in a mortgage suit against first defendant in the suit. The second defendant was made a party to that suit, but was dismissed as an unnecessary party. The appellant obtained a decree on his mortgage, and then the first defendant died. The second defendant was brought on record as legal representative of the first defendant and there is no doubt that she was properly brought on record as his legal representative. In execution the appellant purchased the property, but when he tried to get possession he was resisted by second defendant who claimed title to the property in her own right and independently of the judgment-debtor. The appellant then took proceedings under Order 21, Rule 95. Parenthetically it may be observed that this rule had no application as second defendant was not claiming under a title created by the judgment-debtor. However, the Court decided that it could not determine the question of title, but made an order for symbolical possession in favour of appellant. This empty victory did not satisfy the appellant who appealed. His appeal was dismissed, and he has appealed to the High Court.
2. The learned Advocate for the respondent (who is the original second defendant in the suit) has taken the preliminary objection that no appeal lies. That question of course depends on whether the disputed title could and should have been determined by the executing Court under Section 47. No doubt, the second defendant having been dismissed from the suit was no longer a party to the suit, and if nothing more had happened, the executing Court could have given no decision regarding title to the property sold which would have been binding on second defendant. Krishnappa v. Periasami (1916) 32 M.L.J. 532 : I.L.R. 40 Mad. 964 and Abdul Sac v. Sundara Mudaliar : AIR1930Mad817 are sufficient authority for that position. But the second defendant had afterwards been brought on record as the legal representative of the first defendant, judgment-debtor. In that capacity she had become a party to the execution proceedings and upon the authority of Vengapayyan v. Karimpanakal Parvati I.L.R. (1902) 26 Mad. 501, Machamma v. Kanakamma : AIR1935Mad923 and Punchanun Bundopadhya v. Rabia Bibi (1890) I.L.R. 17 Cal. 711 (to cite only a few of the cases brought to my notice), I think, there can be no doubt that her claim to the property in her own right could be determined by the executing Court under Section 47. The case is different as illustrated by Bahori Lal v. Gauri Sahai I.L.R. (1886) 8 All. 626 and Budruddin Sahib v. Abdul Rahim Sahib : (1908)18MLJ21 where a claim is advanced on behalf of some third person, as by a trustee on behalf of his trust or beneficiary. But where the party before the Court is there as legal representative of the judgment-debtor and claims to be entitled to the property in her own right, the authorities to which I have referred show that the executing Court can determine the question in dispute. For these reasons I think the preliminary objection fails, and that the appeal lies. It is obvious that the executing Court has failed to do what it should have done and the case must go back for it to determine the question of title raised by the second defendant. The costs of these appeals in this case as well as in the lower appellate Court will abide the result of that determination.