1. A suit, S.C. No. 1709 of 1921 on the file of the Sub-Judge, Madura was brought against defendants 1 to 6 for the value of paddy received by one Ganapathi Achari, deceased whose as sets were said to be in the hands of the defendants. Defendants 4 to 6 were exonerated before trial. A decree was passed against defendants 1 and 2. Deceased had by his will granted a life interest in the property now sought to be proceeded against to his widow defendant 2 with vested remainder to defendant 4. After the decree defendant 2 died and the plaintiffs sought to proceed in execution against this property which had come into the possession of defendant 4 on her death.
2. The latter objected as she had been exonerated in the suit, but both the lower Courts found that the property was liable. She files this revision petition. The view of the lower Courts with regard to the said property of the deceased in her hands being liable for the decree is I consider clearly wrong. She was exonerated before filing any written statement, by the plaintiffs themselves, so that estoppel cannot be and is not pleaded against her in respect of anything that happened in the suit. There can be no decree simply against the assets of a deceased person. Section 50, Civil P.C. talks of 'judgment-debtor.' The recent judgment of Jackson, J., and myself in L.P.A. 290/1927 may be referred to, but it is too obvious to require elaboration that a decree must always be for assets in the hands of some person: vide Kaliappan Servaikaran v. Vaiadarajulu (1910) 33 Mad 75. It is no answer to say as the learned District Judge does that the object of the decree was to fasten the liability for the debt on all the assets of the deceased debtor. That may have been the object of the suit, but the decree will not bind anyone but the judgment-debtors and their legal representatives. So also it is not true that defendant 4 when she was exonerated had no saleable interest in the property.
3. The learned pleader for the respondents attempts to argue that because defendant 2 was in physical possession of the property after the testator's death she must be treated as having been in entire possession for the purpose of the suit. No authority is quoted for such a strange proposition. Its fallacy is clear if we consider what would have happened had she not died and had plaintiffs proceeded to execute their decree against her. They could only have gold her life interest in the suit property; therefore they cannot be in any better position after her death. The cases quoted for the plaintiffs are not in point: Mallappa v. N.G. Kare AIR 1928 Mad 487 only decided that where in a suit filed by creditors of a deceased person against his heirs and against certain persons impleaded as being in possession of his assets those in possession colluded with the plaintiffs in allowing a decree to be passed, the decree was not binding on the real heirs. That has nothing in common with the present case, but a remark is relied on:
Where a decree is obtained without fraud or collusion against persons in possession of the deceased debtor's estate it will be binding on his heirs.
4. This does not state that a part legatee remains anything, but a part legatee simply because he is in actual possession. Gnanambal Ammal v. Veerasami Chetty (1915) 31 IC 920 has also no application. In that case there was a genuine mistake of fact. There was no mistake of fact here. The plaintiffs knew the terms of the will and exactly what defendants 2 and 4 respectively took under it as legatees, and in fact originally impleaded defendant 4, but chose to exonerate her: Kasthuri Ranga Iyer v. Venkatarama Iyer AIR 1914 Mad 668, has also no application. Defendant 4 is not being proceeded against as the legal representative of defendant 2 and she is not her legal representative. As defendant 4 is therefore neither a judgment-debtor nor a legal representative of the judgment-debtor, and as the decree does not affect her, it is unnecessary to consider whether the plea of limitation which she took in the first Court was rightly or wrongly decided against her.
5. The learned District Judge however mentions at the end of his judgment that the non-contesting of Execution Application No. 711/1928 by the petitioner made the matter res judicata. The point was not raised in the executing Court and constructive res judicata in the matter of execution petition has to be very cautiously applied. Now the execution application in question was merely one to transfer the decree to the Melur District Munsif's Court for execution. Assuming, purely for the sake of argument, that from the fact that transfer was ordered we may presume proper service on defendant 4,. the non-appearance against a petition to transfer a decree with which defendant 4 had no connexion, can obviously not create any constructive res judicata that the property of the testator in her hands is liable to be proceeded against. The simple answer is that she had no locus standi to oppose any such transfer application because she had been exonerated from the decree. The last argument addressed for the plaintiffs to me is that I should not interfere in revision where no substantial injustice has been done because the plaintiffs, who represent a temple, are morally entitled to the property.
6. To allow a party against whom no proceedings can be taken in execution to be proceeded against, merely because the plaintiffs knowing the exact rights of the party and of everyone concerned made a mistake in exonerating her in the suit, would be subversive of all ideas of legal procedure and cannot be permitted on any ground of alleged moral right of the temple to the property. The revision petition is therefore allowed with costs throughout and the execution application against defendant 4 must stand dismissed.