Prinsep and Banerjee, JJ.
1. The mortgage decree in this case was passed against one Barhma Dutt on the 17th August 1878, and since that date it has on various occasions been put in execution, portions of the debt having been realized. The present application for execution was presented on the 10th January 1890. It is not improbable, having regard to Section 230 of the Code of Civil Procedure, that this will be the last opportunity that the decree-holder will have to execute his decree. The previous application for execution seems to have terminated on the 27th November 1888. The order then passed by the Subordinate Judge was;--' In this case the sale was stayed awaiting the disposal of the regular suit, it being not necessary to keep this case pending, it is ordered that, attachment being allowed to stand, the case be struck off for the present.' This application to execute has been opposed, for it so happens that the judgment-debtor, Barhma Dutt, has died. Execution is now taken out against the mortgaged property, and his sons, to whom the estate has passed, object that the decree which was passed against their father alone cannot be executed against the joint family estate, now theirs by the operation of Mitakshara law.
2. Both Courts have held that execution cannot proceed. The District Judge has proceeded on the authority of the judgment of a Full Bench of the Madras High Court in the case of Karnataka Hanumantha v. Anduhuri Hanumayya I.L.R. 5 Mad. 232, and in applying this ruling, he has stated that the attachment of the properties now in question was admittedly made after the death of Barhma Dutt. This admission seems to have been made under a misapprehension of the state of the proceedings which has been brought to our notice. The order of the 27th November 1888 has already been quoted, and under that order it was expressly declared that the attachment should stand, the case being struck off for the present, apparently for the convenience of the files of the Court. There is no order on the record, nor is it contended by the learned pleader for the respondent that any order was made, removing the attachment. But it appears that on the 10th January 1890, after the decision of the regular suit, on account of which the execution was stayed, a fresh application was made by the decree-holder, in the course of which, in inadvertence of the previous proceedings and the order of November 1888, he asked that notice be served first and then the property be attached and sold. If there had been no attachment subsisting at the death of Barhma Dutt. then no doubt the rule laid down by the Madras Court on which the District Judge relies would have governed the case before us. But it seems quite clear that there was an attachment subsisting before the present application for execution and up to the present time, and that that attachment was over certain properties forming the estate of Barhma Dutt and his sons, the respondents, at the time of Barhma Dutt's death. Under such circumstances we think that the estate of Barhma Dutt under such attachment at the time of his death would be liable after his death, even though it had passed to the surviving members of the joint Mitakshara family. The law is laid down by their Lordships of the Privy Council in Suraj Bunsi Koer v. Shea Persad Singh I.L.R. 5 Cal. 148 at p. 174 : L.R. 6 I.A. 88 at p. 114).
3. In that case it is stated that their Lordships think that 'at the time of Adit Sahai's death the execution proceedings under which the mouzah had been attached and ordered to be sold had gone so far as to constitute, in favour of the judgment-creditor, a valid charge upon the land, to the extent of Adit Sahai's undivided share and interest therein, which could not be defeated by his death before the actual sale. They are aware that this opinion is opposed to that of the High Court of the North-Western Provinces in the case Goor Pershad v. Sheodeen 4 N.W. 137 already referred to. But it is to be observed that the Court by which that decision was passed does not seem to have recognized the seizable character of an undivided share in joint property which has since been established by the before-mentioned decision of this tribunal in the case of Deen Dyal Lal I.L.R. 3 Cal. 198 : L.R. 4 I.A. 321. If this be so, the effect of the execution sale was to transfer to the respondents the undivided share in 8 annas of mouzah Bissumbhurpore which had formerly belonged to Adit Sahai in his life-time; and their Lordships are of opinion that notwithstanding his death the respondents are entitled to work out the rights which they have thus acquired by means of a partition.'
4. Applying the rule thus laid down, the decree-holders are entitled to sell the right, title and interest of Barhma Dutt in the mortgaged properties which were under attachment when the order of the 27th November 1888 was passed. There is no necessity for considering how far the entire ancestral estate, including the share of the respondents, is liable, because it appears from a petition of the decree-holder of the 22nd March 1890 that it was his intention only to attach the property which belonged to Barhma Dutt and was left by him at his death. The respondents' pleader intimates that some of the properties which it is now sought to sell were not the properties which were under attachment when the order of the 27th November 1888 was passed. This is an objection which can be best determined in the Court of execution. No doubt the present proceedings can be directed only to the properties under attachment on 27th November 1888. The order of the lower Court is accordingly set aside, and execution will proceed in the manner indicated. The appellant will receive his costs in the lower Court as well as in this Court.