MADALA MADAVARAYUDU Vs. TANIKALLA SUBBAMMA

JUDGEMENT

(1.) The property in dispute belonged to Adanki Naganna.. He first mortgaged it to the father of defendants 3 and 4 and subsequently to the plaintiff. The father of defendants 3 and 4 brought a suit on his mortgage against Naganna the mort- gagor (Suit No. 4.86 of 1897). Plaintiff was not a party to that suit. During the pendency of the suit Naganna died. The suit was continued against one Suryanarayanamurthy, the divided brother s son of the deceased Naganna. The 1st defendant is the daughter of Naganna. But she was not made a party to the suit after her father s death. A decree was obtained by the father of defendants 3 and 4 against Suryanarayanamurthy and in execution of that decree the equity of redemption in the property was purchased by the father of defendants 3 and 4. The 7th defendant s deceased father purchased it from the father of defendants 3 and 4 and has been in possession. The case for the plaintiff is that the decree obtained in the previous suit did not bind the 1st defendant who alone was competent to represent her father and that consequently the sale of the equity of redemption behind her back cannot bind either the 1st defendant or the plaintiff. It may be stated here that the 2nd defendant is the widow of Suryanarayana-murthy who was impleaded in the previous suit as the legal representative of the deceased Naganna.

(2.) The Subordinate Judge came to the conclusion that the decree in favour of the father of defendants 3 and 4 and the sale there-under are not binding upon either the plaintiff or the first defendant and consequently gave a decree to the plaintiff for the sale of the properties.

(3.) The main contention of Mr. Narasimha Row is, that, as Suryanarayanamurthy was honestly impleaded as the legal representative of the deceased Naganna, the decree obtained in that suit is binding upon the plaintiff and the 1st defendant. He therefore asks that his clients should be allowed to redeem the plaint mortgages. Prima facie no decree can be binding against a person who has not been represented in the suit. To this well-known principle there are exceptions. In the first place as pointed out by Mr. Ramesam if a decree has been legally obtained against the proper person, it may be permissible in execution proceedings to implead another person as the legal representative and to carry on execution as against him although he is not the real representative of the deceased judgment- debtor. Of course, the decree-holder must act honestly in selecting the legal representative. There must be due care and caution and want of malafides. This was laid down by the Judicial Committee in Malkarjan v. Narhari (1900) I.L.R. 25 B. 387 and has been followed in all the High Courts. Ramaswami Chettiar v. Oppilamani Chettiar (1909) I.L.R. 33 M. 6 has applied that principle in this presidency. That was a case where after decree one of several persons who was entitled to represent the deceased judgment-debtor was brought on the record, It was held that that person for all practical purposes fully represented the judgment-debtor. In the case in Gnamambal Ammal v. Veerasmi Chetti (1915) 29 M.L.J. 698 the widow was brought in as the legal represen-tative. Under the enlarged definition of legal representative to be found in the Civil Procedure Code of 1908 a person in possession of the estate belonging to the deceased is competent to represent the deceased defendant. The decision in Kaliappan Servaikaran v. Varadarajulu (1909) I.L.R. 33 M. 75 was also one in execution.