Banerjee and Gordon, JJ.
1. This appeal arises out of an application for execution of a decree obtained by the appellant before us, against a Hindu widow, Hemangini Debi, in the year 1887. The decree is now sought to be executed against the respondents before us, who are described in the application for execution as the heirs of the late Hemangini Debi, and who were brought on the record as her representatives, by the attachment of the surplus proceeds of the sale of certain properties belonging to the judgment-debtors, that is the heirs of Homangini. The judgment-debtors objected to the execution proceeding against them, on the ground that the properties, the sale proceeds of which were sought to be attached, belonged originally to Hemangini's husband; that Hemangini had only a Hindu widow's interest in the same; and that they succeeded to those properties as the reversionary heirs of her husband. On the other hand the decree-holder contended that he was entitled to execute the decree in the way applied for : first, because the judgment-debtors, under the conditions of a deed of release executed in their favour by Hemangini, were bound to pay off the judgment debt due from Hemangini to him; and, secondly, because the debt duo under the decree had originally been contracted for legal necessity, and was therefore binding on the estate in the hands of the reversioners.
2. The learned Judge below, however, overruled the decree-holder's contention and gave effect to the objection of the judgment-debtors and disallowed the execution.
3. Against that order the appeal now before us has been preferred, and the contention on behalf of the appellant is, first, that the decree-holder is entitled to execute the decree in the way he is seeking to do, because, by virtue of the condition in the release in favour of the respondents, they were bound to pay off' the debt due to the appellant, and it was competent to Hemangini to sue thorn for the amount that they had so undertaken to pay on her behalf; and, if that was so, the amount due under the decree in favour of the appellant should, on Hemangini's death, be treated as a part of her personal assets in the hands of the respondents, and they not having duly disposed of the same are liable to be proceeded against under Section 234 of the Code of Civil Procedure; and, secondly, that the debt due under the decree having originally been contracted for legal necessity, the respondents, as reversionary heirs, are bound to satisfy the same out of the estate of Hemangini's husband.
4. In support of the first branch of this contention, we are referred to a rule deduced by Pollock in his Treatise on the Principles of Contract, p. 202, from the case of Davenport v. Bishopp 2 Y. & C. 460, that either contracting party may enforce the contract against the other, although the person to be benefited had nothing to do with the consideration, and also to a passage in Williamson Executors, p. 1177, where the learned author says. It must, however, be observed that, as between the debtor-executor and the creditors of the testator, this doctrine was applicable only in cases where there were assets sufficient to satisfy the testator's debts. For it would be unfair to defraud the creditors of their just debts by a release which is absolutely voluntary. And therefore the debt due from the executor was considered on their behalf as assets in his hands.'
5. We are of opinion that upon the authorities cited, and upon the general principles of justice, equity and good conscience which we are bound to follow in oases not expressly provided for, the contention of the appellant is sound. The respondents obtained possession of the estate during the widow's life-time by virtue of her relinquishment, upon the express condition that they should pay her debts, amongst which the debt due to the appellant is specifically mentioned. That being so, it is but just that they should pay the amount due to the appellant.
6. But then it was contended that, although the appellant may. be entitled to recover the money from the respondents, that must be by a separate suit, and that the Code of Civil Procedure does not contain any provision authorizing execution in the way the appellant is seeking it. It is argued that the respondents are not the legal representatives of the widow, and that the property which is sought to be attached did not form any part of the widow's personal estate, but formed a part of her husband's property which has come to the respondents as reversionary heirs, and that therefore the same is not liable to be attached in execution of the decree which was only a personal decree against the widow. The answer to this contention is, however, shortly this : The respondent having taken the estate during the life-time of the widow upon her relinquishment on condition that they should pay the debt due from her to the appellant, they are answerable to the widow for such payment, and the widow might have sued them for the recovery of the money that they had so undertaken to pay for her; and, if that was so, there was clearly a debt due from them to the widow, the extent of which is precisely that of the judgment-debt now sought to be recovered. That the respondents are the widow's legal representatives is, we think, conclusively settled for the purposes of this case, as we gather from the decision of the Court below that they were brought on the record as such representatives. That being so, and they not having shown that they have duly applied this portion of the assets of the widow that is in their hands, they are under Section 234 of the Code of Civil Procedure, liable to have execution taken out against them to the extent of those assets. The case of Kameshwar Pershad v. Bun Bahadur Sing I.L.R. 12 Cal. 458 was relied upon by the learned Vakil for the respondents as showing that persons in the position of his clients cannot be regarded as legal representatives within the meaning of Section 234 or Section 244 of the Code of Civil Procedure, but that case is clearly distinguishable from the present. There the person against whom execution was sought to be taken out was a party to the suit and had been expressly exempted from liability under the decree, and the only ground upon which the decree-holder, who had obtained merely a personal decree against the widow, sought to proceed against him was that he had taken certain properties under an ikrarnama from the widow; but that of itself could not form a ground for execution proceeding against him under Section 234. In the present case the decree was against Hemangini alone. It has admittedly not been fully satisfied; and the judgment-debtor having died before the decree had been fully executed, the holder of it is entitled to apply to the Court to execute the same against the legal representatives of the deceased; and the ground of liability mentioned in the second paragraph of Section 234 has, as we have said above, been clearly made out in this case. In this view of the case it becomes unnecessary to consider the second branch of the argument advanced on behalf of the appellant.
7. The result is that the order of the lower Court must be set aside and the case sent back to that Court in order that execution, may proceed. The appellant is entitled to his costs.