1. The only question that has been argued in this appeal is the fourth point in the judgment of the learned Subordinate Judge, namely, whether the suit is barred by Section 47 of the Code of Civil Procedure or Expl. 4 to Section 11. So far as the first portion is concerned it is quite clear that this is not a matter coming under Section 47, for it does not relate to the execution of any decree and it is not seriously contended that this suit should have been brought under Section 47 as an execution petition. The second portion is the point chiefly relied on, namely, that this suit is barred by Section 11 of the Code of Civil Procedure in that there was a prior decision in execution proceedings to which the 2nd plaintiff, the 2nd defendant and the 3rd defendant were parties, when it was held that the suit property was liable to be attached in execution of a decree against the 2nd defendant. So far as that point is concerned it is concluded by the order as between the parties to it but, certainly, the first plaintiff was not a party to these proceedings and the question is whether the 1st defendant, who is the Official Assignee, can be deemed to be the legal representative of the insolvent 2nd defendant within the meaning of Section 11, Civil Procedure Code. In order that it may be binding as between the plaintiffs and the 1st defendant it is necessary that the 1st defendant should claim under the 2nd defendant and be litigating' under the same title. The question in issue in the former suit was solely one relating to the execution of a decree in which the 2nd defendant was the judgment-debtor; but in the present proceedings that is not at all the position which the Official Assignee takes. He does not seek to oppose the decree-holder in that suit but wishes to obtain the property for the benefit of the 2nd defendant's creditors and, consequently, I do not think that he can be deemed to be litigating here under the same title as the 2nd defendant in the prior proceedings. The case which seems to be in point here is Kashi Prasad v. Miller ILR (1885) A 752, which seems to be entirely similar and decides that the Official Assignee is not the legal representative in these circumstances. Reliance is placed by the appellant on Miller v. Lukhimani Debi ILR (1901) C 419; but apart from the fact that the observations are obiter, they were expressly withdrawn by the same Judge in a subsequent case, a Full Bench decision, reported in Frederick Peacock v. Madan Gopal and Ors. ILR (1902) C 428. No doubt the Official Assignee does for certain purposes represent the insolvent, but he has other capacities such as the representative of the body of creditors; and in each case in order to determine what particular character he holds one must have regard to the circumstances. If in a case he was litigating under the same title under which the insolvent had previously litigated, he might be held to be the legal representative. In the present case I think the Subordinate Judge is right in holding that he is not the legal representative of the 2nd defendant, and certainly he is not the legal representative of any of the other parties to the previous order. The second appeal therefore fails and is dismissed with costs.
2. The appeal might also be. disposed of on another ground, namely, that the prior proceedings were in a suit of Small Cause nature, whereas that is not so in the present case. I do not think that the fact that the order was passed in execution on the original side could give it any higher authority than an order in the proceedings to which it was consequent for Section 11, Civil Procedure Code, is not in terms applicable to such proceedings and can only be applied by analogy.