Alfred Henry Lionel Leach, C.J.
1. The question which arises in this appeal is whether a person who has been brought into Court in execution proceedings merely as the legal representative of the judgment-debtor is compelled to have his own claims to the property in suit decided in the execution proceedings or whether he can establish his rights by a separate suit.
2. On the 24th November, 1927 one Habib Muhammad Maracair agreed to sell certain wet lands to one Vaidhialinga Mudaliar, who was the fourth defendant in the suit out of which this appeal arises and is now represented by the third and fourth respondents. the vendor failed to execute a conveyance and the purchaser instituted a suit in the District Court of Negapatam for a decree for specific performance. The suit was subsequently transferred to the Subordinate Judge's Court for hearing. The appellant was made a party to that suit because she claimed a share (7/72) in it. She was made a party on her own application, which was opposed by the plaintiff. An issue was then framed on the question whether she was a necessary party to the suit and it was decided that she was not. Consequently her name Was struck off the record. On the 8th August, 1931 a decree for specific performance was granted to the plaintiff, but before it could be executed the vendor died. The result was that the appellant was made a party as his legal representative. The application for execution then proceeded and eventually the Court executed a conveyance in favour of the purchaser.
3. In the course of the execution proceedings, but before the conveyance was signed the appellant instituted in the Court of the District Munsif of Tirutturaipundi the present suit. The purchaser challenged her right to institute it. He maintained that her claim should have been decided in the execution proceedings and it was now too late to raise it. The District Munsif accepted this argument and dismissed the suit. His decision was concurred in by the Subordinate Judge of Tiruvarur. The appellant then appealed to this Court and the second appeal came before Abdur Rahman, J., who has made the reference which this Full Bench is now called upon to consider.
4. The reference became necessary because there are conflicting decisions of this Court on the question involved. The first case to which our attention has been called is that of Kuriyali v. Mayan I.L.R.(1883) Mad. 255. That appeal arose out of a mortgage suit and in execution proceedings the legal representative of the mortgagor claimed an interest in the mortgaged property. The claim was investigated by the District Munsif in execution proceedings, but on appeal to the District Court it was held that the District Munsif had no power to decide the legal representative's title and that the proper course was for the decree-holder to attach the property and for the legal representative to make a claim. This course was adopted and resulted in the legal representative's claim being rejected. Thereupon he brought a suit to cancel the sales which had taken place in the course of the execution of the decree and it was held that the suit did not lie. The Court did not, however, consider a very important question, namely, whether it is open to a legal representative with a claim of his own to challenge in execution proceedings the validity of a mortgage decree which has been, passed against the person he is representing.
5. A decision running counter to the judgment in Kuriyali v. Mayan I.L.R.(1883) Mad. 255 was given by another Bench of this Court in Kumaretta Servaigaran v. Sabapathy Chettiar : (1906)16MLJ545 . In that case the appellant was the defendant in a mortgage suit and in an application for a final order for sale which was made in execution proceedings the Civil Procedure Code of 1882 then being in force) the appellant sought to stop the sale on the ground that the decree which had been passed against him was not binding on the property; because since the passing of the decree he had been adopted into the family of another person to whom the property belonged. The Subordinate Judge overruled his objection and made an order for the sale of the property. This was held by Boddam and Wallis, JJ., to be right. In the course of the judgment they pointed out that the objection taken by the appellant was that, though the decree to which he was a party was a decree for the sale of specified immovable property, he was entitled to object in execution to the sale of the property; in other words the appellant's objection was an objection to the decree itself and not to the execution, discharge or satisfaction of the decree. Reference was made to the decision in Kuriyali v. Mayan I.L.R.(1883) Mad. 255 and the defect in that judgment was indicated.
6. Dissent from Kuriyali v. Mayan I.L.R.(1883) Mad. 255, was also expressed in Zamindar of Karvetnagar v. Trustee of Tirumalai Tirupati etc., Devasthanams (1909)19 M.L.J. 401 : I.L.R. Mad. 429 which was decided by White, C.J., and Abdur Rahim, J. There a mortgage decree was passed against the holder of an impartible estate. On the death of the mortgagor his son sought to set up in execution proceedings a contention that the mortgage was not binding upon him. It was held that this course was not open to him. After stating that there was abundant authority to support the proposition that the decree in a mortgage suit directing sale could not be impeached in execution proceedings the Court observed:
The case of Kuriyali v. Mayan I.L.R.(1883) Mad. 255 no doubt supports the contention that the rights of the judgment-creditors who have obtained mortgage decrees can be determined in execution proceedings, but as Mr. Sundara Aiyar pointed in that case the Court would seem to have overlooked the fact that the decree itself contained a direction for sale and that notwithstanding the decree for sale the properties had been attached as if the proceedings had been in execution of a money decree. Apparently all the cases in which Kuriyali v. Mayan I.L.R.(1883) Mad. 255 is cited with approval are cases in which the decree sought to be executed was a simple money decree or, at any rate was not a mortgage decree and the question we have to determine did not arise.
7. The decision in Kuriyali v. Mayan I.L.R.(1883) Mad. 255 was criticised by Ayling and Seshagiri Aiyar, JJ., in Kelu Achan v. Parasu Pattar (1916) 5 L.W. 158. On the other hand it receives support from the judgments given by Madhavan Nair and Stodart, JJ., in Chinnathayee v. Lakshmi : (1936)71MLJ511 , by Cornish, J., in Peer Bathummal Beevi v. Nagur Meerammal Beevi : AIR1937Mad108 , and by Ramesam and Jackson, JJ., in Govindarajulu Naidu v. Chinnathambi Padayachi : AIR1928Mad1270 . It is, however, significant, that in these cases no reference was made to the decisions in Kumaretta Servaigaran v. Sabapathy Chettiar : (1906)16MLJ545 , Zamindar of Karvetnagar v. Trustee of Tirumalai Tirupati etc., Devasthanams (1909) 19 M.L.J. 401 : I.L.R. Mad. 429 and Kelu Achan v. Parasu Pattar (1916) 5 L.W. 158 Cornish, J., did refer to certain other decisions, but the decisions related to proceedings in execution of money decrees, where the considerations are not the same as they are here or in proceedings in enforcement of a mortgage decree. The latest decision of this Court was given by Venkataramana Rao and Abdur Rahman, JJ., in Lakshmudu v. Ramudu I.L.R. (1940) Mad. 123 and their judgment supports the judgments which dissent from Kuriyali v. Mayan I.L.R.(1883) Mad. 255.
8. We are firmly of the opinion that Kuriyali v. Mayan I.L.R.(1883) Mad. 255 was wrongly decided and that the law on the question now before the Court is correctly expressed in Kumaretta Servaigaran v. Sabapathy Chettiar : (1906)16MLJ545 , Zamindar of Karvetnagar v. Trustees of Tirumalai Tirupati etc., Devasthanams (1909) 19 M.L.J. 401 : I.L.R. Mad. 429 Kelu Achan v. Parasu Pattar (1916) 5 L.W. 158 and Lakshmudu v. Ramudu I.L.R. (1940) Mad. 123. When a person comes into Court in execution proceedings as the legal representative of a deceased party he cannot question the decree which has been passed. If the decree concerns property in which he claims an interest, the decree will not be binding upon him unless he was a party to the suit. If he was not a party to the suit or, as in this case, he had been dismissed from the suit, his rights will be entirely unaffected and he will be in a position to enforce them in a suit instituted by him for that purpose.
9. Section 47 of the Code of Civil Procedure only requires to be decided in execution proceedings those questions which arise between parties to the suit in which the decree has been passed or their representatives and which relate to the execution, discharge or satisfaction of the decree. Where a stranger to the suit claims as his, immovable property which has been the subject-matter of a decree, that claim cannot in law be regarded as being a question relating to the execution, discharge or satisfaction of the decree. There are decisions of this Court to the effect that in execution proceedings arising out of money decrees questions relating to the property attached must be decided in execution proceedings arid not by a separate suit, but this is an entirely different matter because the correctness of the decree is not called into question. Therefore the correctness of such decisions does not arise. We are here dealing with a case where it is said that a person who is not a party to the suit, but is brought into Court in execution proceedings as the legal representative of a deceased party, can in those proceedings be allowed to challenge the decree and if he fails to do so he has for ever lost the right claimed by him in the suit property. Obviously the answer must be that he cannot in execution say the decree is wrong, and he has his remedy by suit.
10. It follows that we hold that the District Munsif and the District Judge erred in dismissing the appellant's suit on the ground that it did not lie. The case will be remanded to Abdur Rahman, J., to decide the other questions which arise in the appeal. The costs of this reference will be made costs in the appeal.