KALIAPPAN SERVAI KARAN Vs. VARDARAJULU

JUDGEMENT

(1.) The appellant sued in Original Suit No. 47 of 1906 to recover the amount due on a pro-note executed by one Muthuchella, the deceased. He made the widow of Muthuchella defendant in the suit and on the 23 March 1906, got an ex parte decree empowering him to recover the amount due under the note from the estate of the defendant's deceased husband in her hand". The decree also directed the defendant to pay the appellant a_ certain sum for his costs. The deceased Muthuchella left daughters but no son. Prior to institution of Original Suit No. 47 of 1906, above referred, to, Varadarajulu, son of one of the daughters, brought a suit, Original Suit No. 14 of 1904, against the widow of the deceased and others to establish a will executed by the deceased in his favour and to recover the property bequeathed to him thereunder. The suit was dismissed on the 27 September 1905, and it was while an appeal was pending in the District Court that the decree in Original Suit, No. 47 of 1906, was obtained. The District Court upheld the will and gave the plaintiff, Varadarajulu, a decree on the 27 August 1906. Varadarajulu took delivery through the Court of the properties decreed to him. The appellant then put in Execution Petition No. 354 of 1907 in Original Suit No. 47 of 1906, and prayed that Varadarajulu might be added as 2nd defendant as representative of the widow, the original sole defendant, and that execution might proceed against the properties of the deceased Muthuchella. The District Munsif ordered Varadarajulu to be brought on record as representative of the deceased Muthuchella's estate and allowed execution to proceed. On appeal the District Munsif's order was set aside.

(2.) The argument before us is that the decree in Original Suit No. 47 of 1906, was a decree against the estate of the deceased Muthuchella, that at the time that suit was brought the widow was the proper person to represent the estate, Varadarajulu's suit having been dismissed in the first suit, and that as Varadarajulu was subsequently found to be the proper person to represent the estate he cannot object to being brought on record in execution, and to execution proceeding. This argument is based upon a misconception. When a person is sued as the legal representative of a deceased person for the recovery of a debt due by the deceased, and a decree is given for money to be paid out of the assets of the deceased in the hands of the legal representative, the decree is none-the-less a decree against the legal representative: Section 252, Civil Procedure Code, makes this clear. it refers to the legal representative as the judgment-debtor and it makes him personally liable under certain circumstances. It follows that such a decree can only be executed against the legal representative who was made defendant in the suit or his or her representatives. Varadarajulu is not a representative of the widow, and the decree obtained against her cannot be executed against him. This view is supported by Subbamma v. Venkatakrishnawma 11 M. 408 in which the cases bearing on the point are considered. There the plaintiff got a decree against the mother of one Subburayan as his legal representative on a bond executed by him being unaware that Subburayan had left an adopted son. It was held that the plaintiff was not entitled to execute the decree as against the estate of Subburayan in the hands of the adopted son. There is a material distinction between the facts of that case and the facts of the present case. In that case the plaintiff believed that the mother was the heir of the deceased. In the present case all that the plaintiff can say is that he believed the widow was the heir of the deceased. The fact that his belief may have been based on the circumstance that Varadarajulu's suit failed in the first suit can make no difference in principle. Sundra V/s. Budam 9 M. 80. has no application to the present case. There the decree was against a muth, and not against the person on the record representing the muth. As was pointed out in Rabayeron Ganibirsingh V/s. Laximandas Gura Ragnathdas 28 B. 215 at p. 223 a muth, like an idol, is in Hindu Law a juridical person capable of acquiring, holding and vindicating legal rights, though of necessity it can only act in relation to those rights through the medium of some human agency. When the property is vested in the muth, then litigation in respect of it has ordinarily to be conducted by and in the name of the manager, not because the legal property is in the manager, but because it is the established practice that the suit would be brought in that form. See Maharani Shibessohree Debia V/s. Methoranath Acharj 13 M.I.A. 270 at p. 274 : 13 W.R. 18 (P.C.); Jaggedumba Dossee V/s. Paddomoney Dassee 15 B.L.R. 318 at p. 330; Rupa Jagset V/s. Krishnajee Govind 9 B. 169; Mondhar V/s. Lakshimiram 12 B. 247 and Kondo V/s. Babaji (1881) P.J.V. 337. But a person in whose name a suit is thus brought has in relation to that suit a distinct capacity he is therein a stranger to himself in his personal and private capacity in a Court of law." As has already been shown the decree in the present case is not against the estate but against the legal representative.

(3.) This appeal fails and is dismissed with costs.