1. The property in dispute belonged to Adanki Naganna.. He first mortgaged it to the father of defendants 3 and 4 and subsequently to the plaintiff. The father of defendants 3 and 4 brought a suit on his mortgage against Naganna the mort-gagor (Suit No. 4.86 of 1897). Plaintiff was not a party to that suit. During the pendency of the suit Naganna died. The suit was continued against one Suryanarayanamurthy, the divided brother's son of the deceased Naganna. The 1st defendant is the daughter of Naganna. But she was not made a party to the suit after her father's death. A decree was obtained by the father of defendants 3 and 4 against Suryanarayanamurthy and in execution of that decree the equity of redemption in the property was purchased by the father of defendants 3 and 4. The 7th defendant's deceased father purchased it from the father of defendants 3 and 4 and has been in possession. The case for the plaintiff is that the decree obtained in the previous suit did not bind the 1st defendant who alone was competent to represent her father and that consequently the sale of the equity of redemption behind her back cannot bind either the 1st defendant or the plaintiff. It may be stated here that the 2nd defendant is the widow of Suryanarayana-murthy who was impleaded in the previous suit as the legal representative of the deceased Naganna.
2. The Subordinate Judge came to the conclusion that the decree in favour of the father of defendants 3 and 4 and the sale there-under are not binding upon either the plaintiff or the first defendant and consequently gave a decree to the plaintiff for the sale of the properties.
3. The main contention of Mr. Narasimha Row is, that, as Suryanarayanamurthy was honestly impleaded as the legal representative of the deceased Naganna, the decree obtained in that suit is binding upon the plaintiff and the 1st defendant. He therefore asks that his clients should be allowed to redeem the plaint mortgages. Prima facie no decree can be binding against a person who has not been represented in the suit. To this well-known principle there are exceptions. In the first place as pointed out by Mr. Ramesam if a decree has been legally obtained against the proper person, it may be permissible in execution proceedings to implead another person as the legal representative and to carry on execution as against him although he is not the real representative of the deceased judgment-debtor. Of course, the decree-holder must act honestly in selecting the legal representative. There must be due care and caution and want of malafides. This was laid down by the Judicial Committee in Malkarjan v. Narhari I.L.R. (1900) B. 387 and has been followed in all the High Courts. Ramaswami Chettiar v. Oppilamani Chettiar I.L.R. (1909) M. 6 has applied that principle in this presidency. That was a case where after decree one of several persons who was entitled to represent the deceased judgment-debtor was brought on the record, It was held that that person for all practical purposes fully represented the judgment-debtor. In the case in Gnamambal Ammal v. Veerasmi Chetti (1915) 29 M.L.J. 698 the widow was brought in as the legal represen-tative. Under the enlarged definition of ' legal representative' to be found in the Civil Procedure Code of 1908 a person in possession of the estate belonging to the deceased is competent to represent the deceased defendant. The decision in Kaliappan Servaikaran v. Varadarajulu I.L.R. (1909) M. 75 was also one in execution.
4. There is another class of cases which is typified by Kadir Mohidin Marakayar v. Muthukrishna Aiyar 3. Where the suit is brought against a proper defendant and after his death only some of the legal representatives are brought on the record, a decree given against such representatives would bind the others similarly situated. This position may be justified upon the analogy of Section 11, Explanation 6, Civil Procedure Code. The principle is that if there is on the record some person who is interested in defending the suit, the fact that that person does not completely represent the deceased is not a ground for holding that the decree is not properly obtained. Some observations in Kadir Mohidin Marakayar v. Muthukrishna Aiyar I.L.R. (1908) M. 230 were relied upon as indicating that all that is required is that the plaintiff should act honestly in choosing any person as the legal representative of the deceased defendant and that so long as malafides cannot be imputed to him the decree obtained against the person whom he brings in would bind all the parties really entitled to the estate. The decision relied on must be read with reference to the facts decided; we cannot allow stray sentences to be detached from their context and to read into them a meaning which the judgment as a whole does not bear. The proposition contended for by Mr. Narasimha Bow would lead to this startling result, that a suit can be prosecuted successfully against a person who has absolutely no interest in the property which is the subject-matter of the suit and so long as the plaintiff has acted honestly the person who is really entitled to the estate will be bound by the decrees obtained in the suit. As pointed out by the learned Judges of the Allahabad High Court in Debt, Singh v. Jia Ram I.L.R. (1902) A. 214 a result like this could not have been in the contemplation of the legislature. On the other hand, the decision of the Judicial Committee in Khirajmal v. Diam I.L.R. (1905) C. 296 shows that if on the death of a defendant his proper legal heir is not brought on the record as required by law, the decree in such a suit will not be binding upon the true heir. It is not clear, as pointed out in Kadir Moidin Marakayyar v. Muthulcrishna Aiyar I.L.R. (1903) . M. 330 whether in the litigation which went up to the Judicial Committee in The General Manager of, the Raj Durbhunga v. The Mahajah Coomar Ramapat Singh (1872) 14. M.I.A. 605 the questions arose after decree and whether the person who was brought on the record was in possession of the property as heiress of her husband. In any case the widow against whom the proceedings were continued had a 'present interest' to protect and consequently that decision is within the principle enunciated in Ramasiwami Chettiar v. Oppilamani Chetti I.L.R. (1909) M. 6. s.c. 19 M.L.J. 671. The learned Counsel for the appellant argued that Suryanarayanamurthy, although a divided brother's son, had an interest in the property in dispute. We cannot accede to this contention. He had only a spes successionis and so long as the daughter was alive, he cannot be said to have had any interest in the property in dispute.
5. We think, therefore, that the Subordinate Judge is right in holding that the decree obtained against Suryanarayanamurthy is not binding upon the 1st defendant or the plaintiff and that consequently the plaintiff is entitled, as the puisne mortgagee, to sue for the sale of the property subject to the rights of the first mortgagee. The decree given in this case is therefore right. We dismiss the Second Appeal with costs.