V.V. Vythilingam Pillai vs Seshan minor by guardian Fankajathammal

Abdur Rahman, J.—One Srinivasulu Naidu executed a mortgage in favour of the appellant on the 3rd July, 1921. The mortgagor died

leaving him surviving a legitimate son, an illegitimate son and a concubine. The appellant instituted a suit on the basis of the mortgage after the

mortgagor''s death (O.S. No. 288 of 1933). He did not know of the existence of the illegitimate son and the concubine and thus impleaded the

legitimate son alone who was considered by him to be the sole legal representative of the deceased mortgagor. It might be stated here that the

legitimate son was in possession of the properties left by his father Srinivasulu Naidu including the house mortgaged by him. A decree was passed

in favour of the appellant mortgagee on the 22nd October, 1930. In execution of this decree the mortgagee brought the property to sale and

purchased it himself sometime in 1934. It seems that before the appellant had obtained the mortgage decree a suit was filed by the illegitimate son

who is the respondent in this appeal (and the first respondent in the trial Court) for partition and by the concubine (who is the second respondent in

the trial Court) for maintenance on the 7th March, 1930. This was decreed on the 15th April, 1931. A final decree was passed on the 11th

February, 1932, under which the first respondent got one-fourth share of the house mortgaged by his father and the second respondent got a

charge in respect of the three-fourths of the house in lieu of her maintenance. The first respondent appears to have taken possession of the house

through Court on the 18th August, 1932. After the purchase of the property the appellant-auction-purchaser tried to take possession through

Court, but he was obstructed by the first and the second respondents and made an application for the removal of obstruction to the District

Munsiff of Trichinopoly on the 29th March, 1934. It was contended on behalf of the first and the second respondents that they were not parties to

the decree and were therefore not bound by it. They also pleaded collusion between the decree-holder and the legitimate son. The executing

Court''s judgment is not very explicit but in the absence of evidence on the record in regard to collusion between the appellant-decree-holder and

the legitimate son it may be taken that the executing Court found against it. Holding that the concubine, that is the second respondent was not in

possession of the house he declined to accept the objection raised on her behalf but finding that the illegitimate son, that is, first respondent was in

actual possession of one-fourth of the house on his own behalf his objection was accepted with the result that the appellant-decree-holder was

ordered to be put into possession of the three-fourths of the house purchased by him but the Court declined to deliver possession to him in regard

to the remaining one-fourth. The appellant-decree-holder filed an appeal against that order to the District Judge of Trichinopoly who dismissed it in

a very brief order on the ground that it was not competent as the order was passed by the executing Court under Order 21, Rule 97, Civil

Procedure Code. The present appeal has been filed against this order.

The narrative of facts which has been given above would show that the only question which arises for decision in this appeal is whether the

illegitimate son was bound by the decree obtained by the auction-purchaser against the legitimate son in October, 1930. As I have said above,

there is no evidence on the record that there was any collusion between the decree-holder and the legitimate son. There is nothing to show that the

decree-holder knew of the existence of the illegitimate son or of the concubine before he filed a suit or obtained his decree. Moreover the

legitimate son was in possession of the whole of the estate left by his father at the time when the suit was instituted or even when the decree was

obtained on the basis of the mortgage. It must therefore be held that the decree-holder''s action in impleading the legitimate son, who would in the

ordinary course be the only legal representative was bona fide. This however would not be enough if the general principle of law that a person is

not bound by a decree to which he is not a party is held to govern the present case. If that principle be held to be applicable there is no doubt that

the order passed by the learned District Judge would be correct and the only remedy which the appellant before me would have is to file a suit and

appeals either to the lower appellate court of to this Court would not be competent. On the other hand if it be found that although not a party to the

suit he was yet bound by the decree passed against the legitimate son as the legal representative of his father, appeals would be competent. This

can only be if the first and the second respondents are held to be judgment-debtors within the meaning of Order 21, Rule 98 and the order refusing

to deliver possession found to be appealable as a decree.

There has been some divergence of opinion between the different High Courts on this question. While the Calcutta and the Allahabad Courts

appear to have taken the view that in these circumstances the person who was not impleaded as a defendant in the case would not be bound by

the decree which was passed in his absence Jagannath Prasad Vs. Mt. Jamuna Bai and Others, , and Dwipalchandra Bardhan v. Jeeban Debi

I.L.R.(1930) 58 Cal. 808, this Court has held in a number of decisions that if the plaintiff believed bona fide that the person who was sued was the

proper legal representative of his debtor and a decree was obtained against him without any fraud or collusion the proper legal representatives

would be bound by the decree even if they were not impleaded in the suit. A great deal can be said in favour of the view if one finds the person

who has been sued as a legal representative happens to be in possession of the estate left by the deceased. The case would be still stronger if the

interest of the person who had been sued turns to be identically the same as of those who were not impleaded for want of knowledge on the part

of the plaintiff. It is impossible to say in these circumstances as to what view one would have formed if the matter were res integra. But since the

matter has been decided by not one but three if not four Division Benches of this Court and those decisions are binding on me, it is impossible for

me to go into the question de novo and find for myself whether the decree passsed against the legitimate son in this case would not be binding on

the illegitimate son and the concubine, that is the first and the second respondents. See Ramaswami Chettiar v. Oppilamani Chetti 1909 19 M.L.J.

671 : I.L.R.(1909) 33 Mad. 6, Gnanambal Ammal v. Veerasami Chetti (1915) 29 M.L.J. 698 Bachu Soorayya v. Toomuloori Chinna Anjaneyalu

(1918) 36 M.L.J. 106 and Chaturbujadoss Kushaldoss & Sons v. Rajamanicka Mudali (1930) 60 M.L.J. 97 : ILR 54 Mad. 212. It may be said

in regard to the first case that the matter arose in execution and as pointed out by the learned Acting Chief Justice in Jagannath Prasad Vs. Mt.

Jamuna Bai and Others, the same principle which would apply to suits may not be held to be applicable to execution. But so far as the three other

cases are concerned they cannot be distinguished on their main facts from the present one. Following the cases decided by this Court the first and

the second respondents cannot be regarded as persons other than judgment-debtors within the meaning of Order 21, Rule 98, Civil Procedure

Code. This appeal must therefore be accepted and the order passed by the lower appellate Court set aside. The lower appellate Court is now

directed to entertain the appeal filed by the appellant and dispose of the same in the light of my observations according to law. The appellant will

have his costs in this Court. Costs in the lower appellate Court will abide the result. Leave refused.