1. This appeal is directed against an order made by the Court of Appeal below in affirmance of an order of the original Court, whereby an application to set aside an execution sale on the ground of fraud and material irregularity was dismissed. A preliminary objection has been taken to the competency of the appeal on the ground, that it is barred under Section 104(2) of the Civil Procedure Code of 1908, read with Order XLIII, Rule 1, Clause (j). There is, in our opinion, no substance in this contention. The order of the Court of first instance was made on the 21st September 1907. That order, in accordance with the law as interpreted by this Court at the time, was an order under Section 244 of it Code of 1882 and was consequently in the nature of a decree. Nemai Chand v. Dino Nath Kanjis C.W,N. 691 : Moti Lal Chakerbutty v. Russick Chandra Bairagi 26 C. 326(note) : 3 C.W.N. 395 : Bhubon Mohun Pal v. Nunda Lal Dey 26 C. 324 : 3 C.W.N. 399 : Hira Lal Ghose v. Chundra Kanto Ghose 26 C. 539 : 3 C.W.N. 403. The Code of 1908 could not retrospectively affect the character of that order. The case of Asimuddi Sheikh v. Sundari Bibee 38 C. 339 : 10 Ind. Cas. 345 : 15 C.W.N. 844 : 14 C.L.J. 224 is clearly distinguishable, as there the application for reversal of the sale, and consequently the order thereon, were made under Order XXI, Rules 89, 92 of the Code of 1908. As the order of the primary Court here was a decree, the order of the District Judge also is in the nature of a decree, and a second appeal lies to this Court.
2. In so far as the merits of the appeal are concerned, there is no room for controversy that the appeal must succeed. The application to set aside the sale was dismissed on the 21st September 1907. An appeal was lodged before the District Judge on the 11th November 1907. The appeal was subsequently dismissed, but, upon appeal to this Court, the order of dismissal was set aside and the case was remanded for re-hearing. When the case came to be re-heard, it transpired that the appellant had died on the 14th January 1910. This was brought to the notice of the learned Judge and he allowed the appeal to stand over for six months. On the 13th July 1910, two persons applied to be brought on the record as legal representatives of the deceased appellant; they were two of the three persons named in the Will of the deceased as her executors. An ex parte order for substitution was made, which was subsequently confirmed on the 19th July 1910. On the 19th September 1910, a consent order was made in the appeal that if the judgment-debt was paid by the end of the year, the sale would stand reversed, but if the money was not so paid, the sale would stand Confirmed, and there would be no adjudication on the merits, nor would it be competent to the judgment debtor to appeal against such order. The money was not paid; the result was that on the 4th January 1911, the appeal was dismissed and the sale was confirmed. On the same day, the present, appellant applied for leave to be brought on the record as the legal representative of the deceased appellant. He stated that the two persons, who had been named as executors in the Will of the deceased appellant, had subsequently renounced and Letters of Administration, with a copy of the Will annexed, had been granted to him. His contention in substance was that the grant in his favour operated retrospectively from the date of the death of the testatrix and that he was the only person, competent to represent the estate; he, therefore, asked for leave to prosecute the appeal. This application was refused. The question in controversy now is whether the consent order of the 19th September 1910 is binding upon the estate in the hands of the appellant, in whose favour the Letters of Administration have been granted. In our opinion, the question must be answered in the negative.
3. As was pointed out by their Lordships of the Judicial Committee in the case of Mohamad Mohiuddin Hadjiar v. Pitchey (1894) A.C. 437 : 63 L.J.P.C. 90 : 6 R. 510 : 71 L.T. 99 a creditor of a deceased debtor cannot sue a person named as executor in the Will of the deceased, unless he has either administered, that is, intermeddled with the estate or proved the Will; consequently, the seizure and sale of part of the testator's assets under an execution founded upon a judgment in a suit so constituted was inaffectual to bind the testator's estate. The same view was adopted by this Court in the case of Lakhya Dasya v. Umakanto Chuckerbutty 14 C.W.N. 256 : 2 Ind. Cas. 818. See also Balkrishna v. The Oriental Life Assurance Co. 4 Bom. L.R. 340. This principle clearly supports the contention of the appellant. His case is further strengthened by the additional circumstance that the order, which he seeks to assail, is a consent order, because, as pointed out by this Court in the cases of Rajlakshmi Dasee v. Katyayani Dasee 38 C. 639 at p. 674 : 12 Ind. Cas. 464 and Umeshananda Dut Jha v. Mohendra Prosad Jha 14 C.L.J. 337 at p. 345 : 11 Ind. Cas. 280 though a consent order is just as binding upon a party to the proceeding as an order after a contentious trial, yet a consent order is a mere creature of agreement, and, if greater sanctity were attributed to it than to the original agreement itself, it would be to give to the branch an existence independent of the tree. In the case before us, there is no room for controversy that if the two persons named as executors, who subsequently renounced, had entered into an agreement out of Court with the present respondent, that agreement could not have operated to the detriment of the estate in the hands of the person in whose favour ultimately a grant might be made by the Court of Probate. The position, therefore, is that the order of the 19th September 1910 must be discharged as not binding upon the appellant who alone is entitled to represent the estate.
4. The question next arises whether the appeal before the District Judge has abated and should be allowed to be revived. The appellant in that appeal died on the 14th January 1910, and the application of the present appellant for leave to revive the appeal was not made till the 4th January 1911, that is, long after the expiry of the time allowed by law. The appeal, therefore, must be taken to have abated. But, in view of the provisions of Rule 9 of Order XXII of the Code of 1908, this is clearly a case in which the Court would direct the revival of the appeal. The appellant was not in a position to represent the estate till the grant was made in his favour on the 30th November 1910. That grant had to be completed and security furnished before the appellant could claim to represent the estate; the application of the 4th January 1911 does not, consequently, indicate any lack of diligence on his part.
5. The result is that this appeal is allowed, the order of the District Judge set aside and the case remanded to him in order that the appeal presented on the 21st September 1907 by the original judgment-debtor may be beard at the instance of the present appellant, The costs of this appeal will abide the result. We assess the hearing fee at one gold mohur.