W. Comer Petheram, C.J.
1. My answer to the question put to the Full Bench is, that an objection taken by one who has become the representative of the original judgment-debtor in the course of the execution of a decree to the effect that the property attached in satisfaction thereof is his own private property and not held by him as such representative, is a matter cognizable only under Section 244 of the Code of Civil Procedure, and not the proper subject-matter of a separate suit by a party against whom an adverse order may have been passed under Sections 280 and 281, as provided by Section 283.
2. Section 234 provides that when a judgment-debtor dies before the decree has been fully executed, the decree-holder may apply to execute it against the legal representative of the deceased, and the section goes on to limit the liability of the legal representative to assets of the deceased which have come to his bands, and gives the Court power to compel him to produce accounts, so that under Section 234 a question may arise between the decree-holder and the legal representative of the deceased as to whether the legal representative has or had assets of the deceased which are liable to answer the decree-holder's claim.
3. In the present case, although the question takes the form of an enquiry whether certain property, which is admittedly in the hands of the person against whom an order has been made under Section 234, came to her as the heiress of the deceased or by some other title, it is in fact the very question contemplated by Section 234, whether the legal representative has or has had assets of the deceased, and so is liable to satisfy the claim of the decree-holder.
4. Section 244 provides that all questions between the parties to the suit, or their representatives, relating to the execution, discharge, or satisfaction of the decree, shall be determined by order of the Court executing the decree, and not by separate suit: and I think that this question under Section 234, whether the legal representative has or has had assets, must be a question between him and the decree-holder relating to the execution of the decree, and so comes within the operation of Section 244. Mr. Justice Wilson, in the case of Raj Rup Singh v. Ram Golani Boy I.L.R. 16 Cal. 1, has taken the same view of the section, and after an elaborate examination of the authorities conies to the conclusion that they support that view, and it is not necessary for me to add more than that I entirely agree with his judgment.
5. Our attention has been called to a reported case of later date than the judgment of Mr. Justice Wilson, that of Gour Moni Dabee v. Jugut Chandra Audhikan I.L.R. 17 Cal. 57. In that case the learned Judges, Tottenham and Banerjee, JJ., say that questions raised under the provisions of Section 234 must be decided under Section 244. The other questions which were discussed in their judgment do not arise in this reference.
6. I agree that upon the authorities the matter was one cognizable under Section 244, and that therefore a separate suit will not lie.
7. It appears from the record of this case that the predecessors of the plaintiff' obtained a mortgage decree on the 28th December 1881 against the husband of defendant No. 1, and that during the proceedings in execution the mortgagor died, and the defendant Rabia Bibi was placed on the record as his representative. Subsequently certain property was attached as forming a portion of the mortgagor's estate, and on the widow objecting, her objection was allowed and the property released from attachment. This order is to be found at page 46 of the paper-book, and runs as follows:
The oral and documentary evidence offered by the claimant proves that she is in possession of the properties claimed from before the date of attachment, under a kobala executed by her late husband in part satisfaction of her den-mohur.
'The decree-holder has failed to rebut this evidence. I accordingly allow the claim. The property claimed shall be released from attachment. Vakeel's fee, Rs. 20, and other costs of the claimant, shall be borne by the decree-holder.
8. In this state of facts the learned Judges of the Division Bench, who heard this case, have referred to us for consideration the following question:
Whether an objection taken by one who has become the representative of the original judgment-debtor in the course of execution of a decree, to the effect that the property attached in satisfaction thereof is his own private property, and not held by him as such representative, is a matter cognizable only under Section 244 of the Code of Civil Procedure, and not the proper subject-matter of a separate suit by a party against whom an adverse order may have been passed under Section 280 and 281, as provided by Section 283.
9. Section 244 (c) states that a Court executing a decree shall determine, among other questions.-
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.
10. This section, with the exception of the words 'or their representatives,' is the same as Section 11 of Act XXIII of 1861, and the meaning to be attached to it has been the subject of discussion on several occasions before their Lordships of the Privy Council.
11. In the case of Wahed Ali v. Jumaee 2 B.L.R. (F.B.) 73, the facts were as follows: A suit for possession of immoveable property and mesne profits was brought against certain defendants, among whom were Wahed Ali and his daughter Mussummat Jumaee. Wahed Ali died, and an application was made in January 1856 to have his son, Mullick Inayet Hossein his daughter, Mussummat Jumaee, and others, made defendants, as being his heirs and representatives. Ultimately in the High Court the claim against Mussummat Jumaee personally was dismissed, but possession with mesne profits was decreed against her in her representative capacity.
12. In execution of the decree Mussummat Jumaee's private property was sold notwithstanding her objections, and Wahed Ali became the purchaser. This sale was confirmed on the 15th March 1864, and after its confirmation Mussummat Jumaee brought a suit to cancel the sale held in the execution proceedings and to obtain her property. The case came before a Full Bench of this Court, and the majority of the Judges held that Mussummat Jumaee was only a party in her representative capacity, and that the Legislature only intended that parties in their own right, and not parties in their representative character, should come within the purview of Section 11 of Act XXIII of 1861. They therefore decided that a regular suit would lie. This case was appealed to the Privy Council, and their Lordships held that where a decree was passed against a person in his representative capacity, he was a party to the suit in respect of any question that might arise between him and the other parties relating to the execution of the decree within the meaning of Section 11 of Act XXIII of 1861. So far therefore it has been settled that a party sued in his representative capacity and against whom a decree has been obtained is, in regard to any claim that he may make in his own right to property attached, a party within the meaning of Section 11 of Act XXIII of 1861.
13. The next case in which an interpretation was put under Section 11 of Act XXIII of 1861, was that of Abedunnessa v. Amirunnessa, in the Privy Council L.R. 4 I.A. 66. That was a case in which, after the death of the decree-holder, a contest arose between two parties Wajid Ali and another as to which of them was to be treated as his legal representative. At last it was held that Wajid Ali was the representative. A suit was then instituted to declare that Wajid Ali was not the legal representative, and for an injunction to prohibit execution of the decree in the previous suit. So far as the present case is concerned, it is only necessary to state what their Lordships of the Privy Council said in regard to Section 11, Act XXIII of 1861.
14. They say,-
Their Lordships quite accede to the view of the learned Counsel for the appellant, that this section was intended to enable questions to be tried in execution cases which could not have been so tried before, and to provide, as might have been expected, an appeal from decisions in such trials; but the question narrows itself to this, whether the present case comes under these words: any other questions arising between the parties to the suit in which the decree was passed and relating to the execution of the decree. 'There must be two conditions to give the Court jurisdiction. The question must be between parties to the suit, and must relate to the execution of the decree' (L.R, 4 I.A. 74).
15. They then further add, by way of pointing out the rules which should guide a Judge in deciding whether a person was a party or not, that Wajid Ali 'was in no proper sense of the word a party to the suit. No rights of Wajid Ali were determined or considered in the suit. He was not on the record when judgment was given, nor when the decree was made. He subsequently applied for execution of the decree; but it appears to their Lordships impossible to say that a person by merely applying for execution of the decree thereby constitutes himself a party to the suit,' under Section 11, Act XXIII of 1861.
16. Since then, the words, 'or their representatives,' have been added to the section by the Legislature, and following the rules laid down by their Lordships of the Privy Council, it appears to me that Section 244 embraces all cases where there is an existing decree, in which the contest is between parties whose names were on the record when the judgment was given or the decree made, or their representatives, and where some right has been determined or considered between the parties or their representatives, such right relating to the execution, discharge or satisfaction of the decree. In the present case all these conditions are fulfilled. I therefore think that, unless we were to unduly narrow the scope of a section, which should be liberally construed in order to prevent litigation, the question arising in this case was one under Section 244 of the Code of Civil Procedure.
17. The next point is, whether this claim can be considered to be a claim coming within the provisions of Sections 278 to 283 of the Civil Procedure Code. These sections correspond to Section 246 and the following sections of Act VIII of 1859, the scope of which was twice considered in Full Bench decisions of this Court. In Wahed Ali v. Jumaee 2 B.L.R. (F.B.), 73, it was decided that Sections 246 and 247 did not apply to a case in which the party on the record, in a representative capacity, claimed the release of property attached in execution of the decree on the ground that it belonged to himself. In the course of his judgment, Sir Barnes Peacock states:
If the plaintiff had made an application under that section '(meaning Section 246 of Act VIII of 1859),' her claim must have been disallowed, for the property was in her possession, on her own account, and not on account of any third person.
18. In Section 281 of the present Code, it is stated -
If the Court is satisfied that the property was, at the time it was attached, in possession of the judgment-debtor as his own property, and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him, the Court shall disallow the claim.
19. There is no difference between the present law and Act VIII of 1859, so far as the present reference is concerned; and I think, adopting the reasoning in the case of Wahed Ali v. Jumaee, that Sections 278 to 283 have no application to such a claim; but further, I am of opinion that Sections 278 to 283 have no reference to any claim raised in execution of a decree between parties on the record or their representatives. Section 278 states:
If any claim be preferred to, or any objection be made to, the attachment of any property attached in execution of a decree, on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection, with the like power as regards the examination of the claimant or objector, and in all other respects as if he was a party to the suit.
20. In other words, it suggests that a party making the claim is not a party to the suit; for if the meaning of the law is that parties to the suit may, under certain conditions, make a claim to the property attached, the latter portion of this section would have no meaning. No doubt it has been laid down that under Section 280, if the result of the investigation be that the Court is satisfied that the property was not, when attached, in the possession of the judgment-debtor, or of some person in trust for him, the property must be released; and it has been argued that this shows that a trustee in possession, who has unsuccessfully put forward in an execution proceeding, the title of a person other than the judgment-debtor, as the beneficial owner, may subsequently bring a regular suit to establish his right to or interest in the property. I think on consideration, that this argument is not sound. The section itself does not state who are to be the parties to the execution proceeding, but points out what should guide a Judge in deciding the contest; and that this is the true construction is shown by the concluding portion of Section 278. A similar interpretation was placed upon Section 246, Act VIII of 1859, in the case of Nga Tha Yah v. Burn 2 B.L.R. (F.B.) 91 : 11 W.R. (F.B.) 1. In that case the Court decided that it is for the claimant, and not for the execution creditor, to begin, and he must show his own title to the property and not the title of any third party with whom he has no connection. Sir Barnes Peacock, in referring to Section 246 of Act VIII of 1859, indirectly shows that, in his opinion, the claim must have been a claim of a party not on the record. He says: 'In the early part of the section, the Court is directed to investigate the claim with the like powers, as if the claimant had been originally made a defendant to the suit, and also with such powers as regards the summoning of the original defendant as are contained in Section 220. It is said that the words are remarkable; they are not that the claim is to be investigated as if the claimant were a party to the suit, but as if the claimant had been originally a defendant to the suit,' that is, the suit in which the execution issued. But I take it that the meaning really is that the Court is to have the same powers of investigation as if the claimant was a party to a, suit which would give them power to summon the claimant and to dispose of the case against him, if he should refuse to attend.' (2 B. L. E., F. B., 100.)
21. Again, in dealing with the nature of the claim which must be preferred, he states-' If the Nazir were to seize goods, believing them to be in the actual possession of a defendant, the claimant would have to prove that the Nazir bad seized the goods of the claimant as the goods of the judgment-debtor. In an ordinary case, if the Sheriff wrongly seizes goods, the real owner brings an action against the Sheriff for seizing goods belonging to him. In such a case the claimant would have to begin and prove that the goods belonged to him. If he could show that the goods were in his actual possession, that would be prima facie evidence that they were his property, and not the property of the judgment-debtor. So, if he could prove that the judgment-debtor was his servant, and had the goods in his possession as his servant, that would prove his case. But no one would contend that the Sheriff would have to begin and prove that the goods belonged to the debtor. Even if they were not the debtor's, the claimant would not have a right to interfere unless he proved that they belonged to him, or were in his possession.' (2 B. L, R. F. B. 98.)
22. I think, therefore, that Sections 278 to 283 of the present Code do not cover the case of any contest between parties to the suit, or their representatives on the record of the suit, in regard to the execution, discharge or satisfaction of a decree, whether the claim set up be a claim on the ground that the property is that of a person on the record or belongs to any third party. It seems to me that, the effect of the decision between such parties is, that the right to enforce or oppose execution against the property in dispute is decreed and finally determined under Section 244, subject to the result of such appeal as is given to them by law.
23. I am of the same opinion.
24. I am also of opinion that an objection taken by a person, who has become the representative of a judgment-debtor in the course of the execution of a decree, to the effect that the property attached in satisfaction thereof is his own property, is a matter cognizable only under Section 244 of the Civil Procedure Code, and not the subject-matter of a separate suit. And I agree with Mr. Justice O'Kinealy in thinking that the matter does not fall within Sections 278 to 283, and that the effect of a decision upon the objection of the representative is that the question of the liability or otherwise of the property to satisfy the decree is determined under Section 244, subject to the result of such appeal as is allowed by law.