1. The plaintiffs are the assignees of a decree obtained against one Kheba Singh and in this suit they ask for a declaration that certain properties are liable to be attached and sold to satisfy that decree in the hands of the substantial defendants to the suit, who are the sons of Kheba Singh. It appears that after the decree was obtained Kheba Singh died, and that an application was made to execute the decree against the property now in question in the hands of the same persons who are now defendants; and that application was dismissed. Neither the petition nor the order has been put in evidence, and we are therefore obliged to derive our knowledge of them from the admissions in the plaint, from which we learn that the decree-holders 'filed a list of the disputed property as property belonging to the judgment-debtor Kheba Singh;' that the sons alleged in answer that 'they had got it from the estate of Mewa Lal and not from the estate of Kheba;' and that by the order then made 'the disputed property has been exempted from sale by auction.
2. The decree was subsequently assigned to the plaintiffs, and they now sue for a declaration that the property in question is liable in the defendant's hands to be attached and sold to satisfy the decree. The Subordinate Judge held that Section 244 of the Code of Civil Procedure was a bar to this suit, and he dismissed it accordingly. The District Judge reversed that decision and remanded the case for trial on the merits. Against that order the present appeal has been brought.
3. The sections of the Code which it seems necessary to refer to are these:
Section 234 says:'' If a judgment-debtor dies before the decree has been fully executed, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.
' Such representative shall be liable only to the extent of the property of the deceased which has come to his hands, and has not been duly disposed of; and for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel the said representative to produce such accounts as it thinks fit.'
Section 244 says: 'The following questions shall be determined by order of the Court executing a decree and not by separate suit, namely:
(a) and (b) relate to mesne profits.
' (c) any other questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree.'
Section 248 says: 'The Court shall issue a notice to the party against whom execution is applied for, requiring him to show cause, within a period to be fixed by the Court, why the decree should not be executed against him;(b) if the enforcement of the decree be applied for against the legal representative of a party to the suit in which the decree was made.
4. What we have to say is whether the question of the liability of this property to be taken in execution in the bands of the present defendants-a question raised and decided in the execution proceedings, and now raised again in this suit-is a question 'arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree,' within the meaning of Section 244. And this may be divided into two questions: whether the defendants were and are repre sentatives of the judgment-debtor, and whether the question in dispute is a question between the decree-holders and such representatives in the sense intended by the section.
5. The provision formerly in force corresponding to Section 244, namely, Section 11* of Act XXIII of 1861, was limited in its operation to questions arising between parties to the suit, and the question arose whether the term 'parties' applied to persons Who had not been made parties before decree, but against whom execution was sought as heirs of the judgment-debtor upon his death after decree. In the present section the words 'or their representatives' have been added; and I entertain no doubt that they apply to persons against whom or against the property in whose hands execution is sought, on the ground that they are the heirs of a judgment-debtor who has died after decree.
6. As regards the kind of questions intended in Section 244, the matter I think is pretty clear from the provisions of Section 234. Under that section the representative can be made liable 'to the extent of the property of the deceased which has come to his hands and has not been duly disposed of.' So that two kinds of property can be attached: First, property of the ancestor found in the hands of the heir; and, secondly, the property of the heir, from whatever source derived, to the extent to which he has wasted the assets descended to him without satisfying the debts by the deceased. In the case now before us, the property is of the first kind-property said to be liable to execution in the hands of heirs as assets inherited from their ancestor. In such a case the question that ordinarily arises is, whether the property has so descended or not. That is a question in which the parties interested are the judgment-creditor on one side, and the alleged heir himself on the other. The persons interested would be the same if the property against which execution was sought were the property of the heir himself which it was sought to charge on the ground of his having wasted the inherited assets; the provision in Section 234 for taking an account makes this plain. Upon the construction of the words of the section, it appears to me that the question which the plaintiff seeks to raise in this case not only arose, but was decided in the execution proceedings between his vendor and the present defendants brought in as representatives of the original judgment-debtor, and that Section 244 bars this suit.
7. An examination of the decisions leads to the same result. The cases fall into two classes. The first class consists of cases in which a person is originally made a party in a representative capacity, or is subsequently made a party in consequence of the death of an original party before decree. In this case, it is clearly settled I think that such a person is a party to the suit within the meaning of Section 244, and that a question between turn and the decree-holder, as to whether property has come to him as the representative of the judgment-debtor, and so is liable to be taken in execution of the decree against him as such representative, or, on the other hand, belongs to himself alone and not in such representative character, is one that must be decided in the- execution proceedings, and not by suit. The governing authority on the subject is the decision of the Privy Council in Chowdhry Wahed Ali v. Jumaee 11 B.L.R. 149; and it has been followed and applied in the sense I have indicated in several subsequent cases in this country-Oseemunnissa Khatoon v. Ameerunnissa Khatoon 20 W.R. 162; Arundadhi Ammyar v. Natesha Ayyar I.L.R. 5 Mad. 391; Nimba Harishet v. Sitaram Paraji I.L.R. 9 Bom. 458.
8. The second class of cases consists of those in which the representatives have not been made parties to the suit before decree; but in which, in consequence of the death of the judgment-debtor after decree, a question arises as to the rights of the decree-holder to execute the decree against the representatives or the property said to have descended to them.
9. Under Act XXIII of 1861 it was held, both by the Madras High Court in Buddu Ramaiya v. Venkaiya 3 Mad. 263, and by this Court in Ameerunnissa Khatoon v. Mozuffer Hossein Chowdhry 12 B.L.R. 65, that representatives proceeded against in execution of a decree against the person they represented were parties to the suit within the meaning of the section corresponding to the present Section 244. That question, it seems to me, no longer arises, because in Section 244 the representatives are expressly mentioned. In both of those cases, and in a series of subsequent cases, it has been held, in accordance with the analogy of the other class of decisions already mentioned, that questions arising between a decree-holder and the representatives of the judgment-debtor as to whether property has come to the representatives as such, and so is liable to be taken in execution, or is their own property derived from any other source, and therefore not so liable, must be decided in the execution proceeding and not by suit. Kuriyali v. Mayan I.L.R. 7 Mad. 255; Ram Ghulam v. Hazaree Knar I.L.R. 7 All. 547; Sitaram v. Bhagwan Das I.L.R. 7 All. 733.
10. I only know of two cases which seem to me distinctly inconsistent with the law eatablished, as I think by the two classes of decisions to which I have referred-Abdul Rahman v. Muhammad Yar I.L.R. 4 All. 190; and Awadh Kuari v. Raktit Tewari I.L.R. 6 All. 109. I prefer to follow the view which seems to me most naturally to follow from the language of the Act, and which is supported by the preponderance of authority.
11. Several cases were cited to us to which I think it unnecessary to do more than refer, because the decisions turned upon considerations which do not apply to the case now before us. They are cases in which it has been held that a claim either by the judgment-debtor or by his representatives to property attached in execution, made not in his own right but as a trustee, does not fall within Section 244. Shanker Dyal v. Amir Haidar I.L.R. 2 All. 752; and Nath Mal Das v. Tajammul Husain I.L.R. 7 All. 36. The more recent case of Bahori Lal v. Gauri Sahai I.L.R. 8 All. 626, in which the facts were very peculiar, and quite unlike those of the present case, was decided by one at least of the Judges before whom it came on the ground that it fell within the same principle. It remains to mention two other cases which have been relied upon as inconsistent with the general current of the authorities-Kanai, Lal Khan v. Sashi Bhuson Biswas I.L.R. 6 Cal. 777 and Kameshwar Per shad v. Bun Bhahadur Singh I.L.R. 12 Cal. 458. The first of these cases seems to me to decide nothing touching upon the present question except this, -that where a defendant dies, and some one is substituted, rightly or wrongly, as being his representative, the latter, though he becomes a party, becomes a party to the original suit, the character and scope of which are not enlarged, but remain the same as they were before; and that therefore the person so brought in is not bound to raise in that suit, either before decree or in execution proceedings, any question not properly within the scope of the suit, and not arising out of the execution of the decree actually passed. In Kameshwar Per shad v. Run Bahadur Singh I.L.R. 12 Cal. 458 what was decided, and decided in the execution proceedings, was that a man cannot be made liable in execution as the representative of a deceased judgment-debtor, in respect of property which he has obtained from the judgment-debtor by a title prior to decree, or inherited from some body else, though he may be so made liable in respect of property inherited from the judgment-debtor after decree.
12. I am of opinion that the present suit is barred by Section 244, and that the order of the District Judge should be set aside, and the decree of the Subordinate Judge maintained with costs in both Appellate Courts.
13. I am of the same opinion, and hold that the suit is barred by Section 244, and that consequently the order of the District Judge must be set aside, and the decree of the Subordinate Judge restored with costs in both Appellate Courts.
* How questions regarding amount of mesne profits and interest and sums paid in satisfaction of decrees, &c.;, are to be determined.
[Section 11: All questions regarding the amount of any mesne profits which by the terms of the decree may have been reserved for adjustment, in the execution of the decree, or of any mesne profits or interest which may be payable in respect of the subject-matter of a suit between the date of the institution of the suit and execution of the decree, as well as questions relating to sums alleged to have been paid in discharge or satisfaction of the decree or the like and any other questions arising between the parties to the suit in which decree was passed and relating to the execution of the decree, shall be determined by order of the Court executing the decree, and not by separate suit, and the order passed by the Court shall be open to appeal. Provided that if upon, a perusal of the petition of appeal and of the order against which the appeal is made, the Court shall see no reason to alter the order, it may reject the appeal and it shall not be necessary in such case to issue a notice to the respondent before the order of rejection is passed.]