MARIA URSULA Vs. PANA NAVALAJI

JUDGEMENT

(1.) In this case, the respondent firm obtained a decree for Rs. 184-8-0 against the estate of the deceased Niklav Santago Pereira in Small Cause Suit No. 324 of 1921, In execution of that decree, the respondents-judgment creditors attached the property alleged to belong to Niklav. The appellants, the heirs of Niklav's brother Sebastian, claimed in execution that the property was not liable to attachment in execution of the decree against Niklav on the ground that the property did not belong to Niklav but belonged to Sebastian. The learned Subordinate Judge allowed the application and raised the attachment holding that the property was not liable to attachment and sale as belonging to Niklav. The respondents-judgment creditors appealed to the District Court of Thane. The learned District Judge held that the property under attachment belonged to Niklav, and, therefore, set aside the order of the lower Court, The heirs of Sebastian have filed this second appeal,

(2.) It is urged on behalf of the appellants that no appeal lay to the District Court as the order of the Subordinate Judge fell within the ambit of Order XXI, Rule 60, of the Civil Procedure Code. It is urged that the decree sought to be executed was passed by the First Class Subordinate Judge in Small Cause Suit No. 324 of 1921 and no appeal lay to the District Court against the order in execution of the decree of the Small Causes Court under Section 27 of the Provincial Small Causes Courts Act, IX of 1887. It is further urged that the finding of the lower appellate Court was not conclusive and binding in second appeal. It is contended, on the other hand, that the order of the Subordinate Judge in execution fell under Section 47 of the Civil Procedure Code as Sebastian was a party to the Small Cause suit and the appellants are the representatives of the parties in suit No. 324 of 1921, and the question related to the execution, his charge and satisfaction of the decree, and an appeal lay to the District Court. It was further urged, on behalf of the respondents, that the Small Cause Court suit was transferred to the ordinary jurisdiction of the First Class Subordinate Judge and an appeal lay to the District Court, and further that the finding of the lower appellate Court on a question of fact was binding in second appeal.

(3.) The first question is whether the order of the Subordinate Judge fell under Order XXI, Rule 60, or whether it fell under 8.47 of the Civil Procedure Code. If the appellants are considered to be strangers to the decree in the Small Cause civil suit No. 324 of 1921 obtained by the respondents, it is clear that the order of the Subordinate Judge would fall under Order XXI, Rule 60, and would be conclusive under Order XXI, Rule 63, and no appeal would lie to the District Court against the order of the Subordinate Judge. It has, however, been held that if the property in the hands of the legal representative is attached and the legal representative objects to the attachment on the ground that the property attached is his own property and does not form part of the estate of the deceased judgment-debtor, the objection to the attachment would fall under Section 47 of the Civil Procedure Code on the ground that it is made by a representative of a party to the suit: see Murigeya V/s. Hayat Saheb (1898) I.L.R. 23 Bom. 237. Vengapayyan V/s. Karimpanakal Parvati (1902) I.L.R. 26 Mad. 501. Kali Charan v. Jewat Dube (1905) I.L.R. 28 All. 51. Madhusudan Baa V/s. Gobinda Pria Chowdhurani (1899) I.L.R. 27 Cal. 34, and Chowdry Wahed Ali V/s. Mussamut Jumaee. (1872) 11 Beng. L.R. 149, p.c. In the present case the decree was obtained by the respondents after the death of Niklav but his brother Sebastian was made one of the parties to the suit. The decree was passed against the estate of Niklav, If Sebastian had been alive and had been made a party to the execution proceedings and had raised an objection to the execution on the ground that the property belonged to him and not to Niklav, it would follow from the cases cited above that the order of the Subordinate Judge rejecting his application for raising the attachment would fall within the ambit of Section 47 of the Civil Procedure Code, for it would be a question arising between the parties to the suit or their representatives relating to the execution, discharge or satisfaction of the decree. Does it make any difference on the ground that the execution is now bought not against Sebastian but against the appellants who are the representatives of Sebastian? The decision in Gohuleing Bhikaram V/s. Kisansingh (1910) I.L.R. 34 Bom. 546, s.c. 12 Bom. L.R. 539, would support the contention on behalf of the respondents that the objection of the legal representative of the defendant would fall within Section 244 of the Civil Procedure Code of 1882, corresponding to Section 47 of the present Code. In Chunilal V/s. Kashibhai , it was held that where a creditor sued the father and the son, and obtained a decree against the estate of the son only, the father, though the suit had been dismissed against him, was still a party to the suit within the explanation to Section 47 of the Civil Procedure Code, and any question arising between him and the decree-holder with regard to the execution of the decree would have to be determined by the Court executing the decree and not by a separate suit. According be the explanation to Section 47, the defendant, against whom a suit has been dismissed, is a party to the suit. There must be a legal representative brought on the record as a party before a valid decree is passed against the estate of a deceased defendant, otherwise the decree would be a nullity: see Shivaji V/s. Vithal . Sebastian was, therefore, a party to the Small Cause suit. It would, therefore, follow that the decision of the Subordinate Judge in this case would fall within Section 47 of the Civil Procedure Code as it was between the plaintiffs and the representatives of the defendant in the suit and related to the execution, discharge and satisfaction of the decree. We think, therefore, that the order of the Subordinate Judge was appealable to the District Court as it would amount to a decree under Section 2, Clause (2), of the Civil Procedure Code,