Bachu Soorayya and Another vs Toomuloori Chinna Anjaneyalu, minor by his Mother and Next Friend, Mahalakshmamma and Another

Sadasiva Aiyar, J.—Defendants 3 and 4 are the appellants in this second appeal. The 4th defendant is the purchaser in court-auction sale of

the plaint property which belonged to the plaintiff''s father who died before 1913. The decree in execution of which the sale took place, was a

Small Cause decree passed in a suit of 1913 brought against the plaintiff''s father''s brother as 2nd defendant, he being impleaded as the legal

representative of the plaintiff''s father Seethayya who was then dead. The 2nd defendant was divided from plaintiff''s father and he was not the real

legal representative of plaintiff''s father, the minor plaintiff being such representative. The question is whether the court-auction sale is binding on the

plaintiff.

In paragraph 6 of the plaint, it is alleged that the 2nd defendant was not only not the heir of the "" plaintiff''s father, but that the plaint property

was never in the possession of the 2nd defendant after the plaintiff''s father''s death. These allegations in the plaint were not expressly denied in the

appellants'' written statements, The learned Vakil for the appellants relied, among other decisions, on the decision of Napier, J. and myself in

Gnanambal Ammal v. Veerasami Chetty (1915) 29 M.L.J. 698. There a decree had been passed against a person in possession of the property of

the deceased debtor, though that person was not the heir of the debtor. We held that if the plaintiff in good faith obtained a decree against a person

who was in possession of his debtor''s property and whom the plaintiff believed to be the legal heir, execution proceedings taken in pursuance of

that decree will bind the real heir. We held that the cases in The General Manager of the Raj Durbhanga v. Maharajah Coomar Ramaput Singh

(1872) 14 M.I.A. 605 and Ramaswami Chettiar v. Oppilamani Ghttty ILR (1909) M. 9 : 19 M.L.J. 671 supported our view as also the new

definition of "" legal representative"" found in Section 2, Clause 11 of the CPC Act V of 1908.). I might also refer to Bisseswar Lal Sahoo v.

Maharajah Luchmessur Singh (1863) 6 I.A. 233 and Ishan Chundur Mitter v. Baksh Ali Souddagar (1863) 1 Mars Repo 614. The case of a

decree passed in a suit brought against a person in possession but who is not the heir of the deceased debtor''s estate, must of course be treated as

an exception to the general rule, that proceedings in execution of a decree do not bind the interest of any person who was never brought on the

record as a party to the proceedings in the suit. See Kishen Chunder Ghose v. Mussammat Ashoorvn (1863) 1 Marsh Repo 647 as regards the

general rule. The decisions dealing with suits which had been instituted against a debtor before his death but were continued after his death till

decree or after the decree in execution proceedings with the wrong person on record as legal representative are irrelevant for the consideration of

the plaint before us, as pointed out by their Lordships of the Privy Council in Khiarajmal v. Daim ILR (1904) C. 296 In the present case

defendants 3 and 4 contested the plaintiff''s claim, not on the ground that the 2nd defendant was in possession of the plaint property and hence

might be taken as the plaintiff''s father''s legal representative in some sense, but on the ground that the decree was passed for a debt of the

plaintiff''s father and hence is binding on the plaintiff, the question who was sued as plaintiff''s father''s legal representative or against whom the

decree was obtained as such being immaterial according to the contention put forward by the appellants. I think such a contention cannot be

supported, having regard to the decision in Khiarajmal v. Daim ILR (1904) C. 296. See also Madala Madavarayudu Vs. Tanikalla Subbamma, .

I would, therefore, dismiss the second appeal with plain, tiff''s costs.

Spencer, J.

I agree.