1. The respondent obtained a money decree in O.S. No. 43 of 1913 in the District Court of Chingleput against the assets of a Mahomedan lady named Rahimatunnissa Begum in the hands of the defendants, and in execution attached certain immoveable properties as belonging to the deceased judgment-debtor. Rahimatunnissa Begam's father Abdul Razack put in a claim petition alleging that the property belonged to him exclusively, and that his daughter had no interest in it. Abdul Razack having died the present appellants were brought on record as his legal representatives. The sale deed for the property admittedly stands in the name of Abdul Razack, her father. The District Judge dismissed the claim petition and allowed execution to issue. Hence this appeal. In O.S. No. 12 of 1909, in the District Court of Chingleput the judgment-debtor brought a suit against her father and his alienees for recovery of these properties on the allegation that the sale deed was benami for her and that she was the real owner. She died during the pendency of the suit, and an order was made on the 16th of October 1912 declaring that the suit abated. The present respondent first applied to set aside the abatement on the ground that as a creditor he was entitled to that relief. That was dismissed (Vide Exhibit D.). Thereupon he obtained letters of administration to his judgment-debtor's estate on the 31st March 1915, and again applied for setting aside the abatement. That also was rejected. The question for decision is whether having regard to the abatement of the suit and to the dismissal of the applications for setting aside the abatement the respondent is precluded from attaching the property as that of the judgment-debtor. We are unable to agree with the appellant's vakil on this question. The capacity in which he seeks to execute his decree is not that of a person who has obtained letters of administration or generally as the legal representative of the judgment-debtor, but in his capacity as decree-holder. We do not think that there is any estoppel against his being permitted to execute the decree.
2. The more difficult question is whether so long as the abatement stands the decree-holder can treat the property as that of his judgment-debtor. Two questions arise for consideration: (t) what is the effect of an order of abatement and (2) how far does it affect persons who are not the legal representatives of the deceased plaintiff? On neither of these questions is there any direct authority? But it seems to us that both the questions must be answered against the decree holder. It has been consistently held in this Court that an order of abatement is appealable as a decree. It was first laid down in Subbayya v. Saminatha Aiyar I.L.R.(1895) Mad. 496 and was followed in Meenatchi Achi v. Anantha Narayana Aiyar I.L.R.(1902) Mad. 224. In Subbu Naicken v. Perumal Chetty : (1916)30MLJ486 all the earlier authorities were reviewed, and it was pointed out that an order of abatement is a judgment and should be followed up by a decree. These decisions are supported by the dictum of the Judicial Committee in Brij Indar Singh v. Kanshi Ram I.L.R.(1917) Cal 94 : 1907 33 M.L.J. 486. Their Lordships say at page 109: 'An order abating the suit looking into the terms of Section 371 already quoted, may be said to be really tantamount to a judgment in favour of the defendant.' This observation was made with reference to the Code of Civil Procedure of 1882. Order 22 Rule 9 reproduces without any material alteration the language of the old Code. The dictum of the Judicial Committee that an order of abatement operates as a judgment in favour of the defendant shows that in effect no distinction is made between a judgment obtained on merits and a judgment obtained on failure to prosecute the suit. So long as the plaintiff is unable to vacate the judgment and so long as the defendant continues in possession he can plead against the plaintiff and those claiming under him that the order of abatement is conclusive of his rights to the property. Goda Koopooramier v. Soondarammal I.L.R.(1909) Maa. 167 lays down that the only course open to a legal representative if he wants to escape the effect of the abatement order is to apply for setting aside the abatement and that so long as it stands unreversed it is binding on him. Thus far it is clear that the heirs of the plaintiff who are out of possession are concluded by the abatement order.
3. Mr. Narasimha Aiyangar for the respondent drew our attention to Jaysingh v. Gopal 6 Bom. L.R 638 wherein the learned Judges held that an order of abatement does not operate as res judicata. In that case, the legal representative of the plaintiff on whose death, the suit abated got into possession of the property. It was decided that being in possession he was entitled to resist the suit brought to oust him from possession and that the previous order of abatement did not preclude him from setting up title. Accepting this judgment as rightly laying down the law, it does not affect the present case. In this case the heirs of the deceased defendant in the first suit are still in possession. The learned Vakil for the respondent argued that the possession of the father of the defendant in the first suit, after the death of his debtor which event happened earlier, must be attributed in his right as the heir of his debtor and not to a higher title; he relied upon this Court's decision in Velayudham Pillai v. Subbraya Pillai I.L.R.(1915) Maa. 879. There is no force in this contention. The father had, in the language of the Judicial Committee, obtained a judgment declaring his rights to the property which stood in his name and which right was challenged by the plaintiff. It is impossible to suggest that he either voluntarily or by a fiction of law, gave up this right and substituted for it a right to a share in that property. Velayudham Pillai v. Subraya Pillai I.L.R.(1915) Maa. 879 does not lay down any such proposition. Therefore the position is this, the decree-holder has to establish against a party in possession and in whose favour an order of Court has been passed that that party is not entitled to retain possession as owner of the property. In other words, the effect of upholding the contention of the respondent will be to give a person who derives title from the alleged owner a larger right of attack against persons in possession than that the owner himself possessed. No authority has been cited for such a proposition. The decision in Rani Chand Kuar v. Partap Singh I.L.R.(1888) Cal. 198 in which the Judicial Committee held that a dismissal for default does not operate as res judicata has no bearing upon this question.
4. Now comes the last point whether the respondent who is not claiming title under his deceased judgment-debtor is affected by the order of abatement. We have pointed out already that the legal representatives are barred. Is there any warrant for giving to a stranger a better title than to the alleged owner or her legal representatives? The principle of res judicata may not apply to a stranger; but he has to displace what has been described in more than one judgment of this Court, a chain in the title of the defendant. To repeat that attempt the defendant can plead the previous judgment. There are numerous cases in this Court which have held that a judgment as a chain of title is an exception to the rule of res inter alios acta. Srinivasa Aiyangar v. Arya Srinivasa I.L.R.(1910) Mad. 483 : 20 M.L.J. 546 Sayam Ramamurthi v. The Seeretary of State for India in Council : (1913)24MLJ469 Suppa Bhattar v. Suppa Sokkayya Bhatter (1015) 29 M.L.J. 558 and Khaji Syed Yusuf Sahib v. Ediga Narasimhappa (1918) M.W.N. 175 all lay down this proposition, We see no reason for not following these decisions,
5. It was said that the cause of action for the execution is different from the cause of action for the suit brought by the judgment-debtor against her father. We fail to see the difference. The decree-holder is agitating the same right and is challenging the same infringement which formed the basis of the suit in the previous litigation, We must therefore hold that the right and the infringement are the same on both the occasions, For these reasons we are of opinion that the decree is executable against the property as if it belonged solely to the judgment-debtor, We must allow the appeal and set aside the order of the District Judge, Each party will bear his own costs throughout.