JUDGMENT
Ross, J.
1. On the 8th September 1915, the respondents obtained a mortgage-decree against Tekait Koslesnath Sahi. In Sawan 1325 the judgment-debtor died. On the 8th of February 1919, the decree-holders applied for the substitution of the two minor sons of Tekait, namely, Tekait Goannath Sahi and Babu Juru Partapnath Sahi and of his brother, Patait Dinanath Sahi in his place. On the 17th September 1919, Patait Dinanath Sahi, the appellant, filed in the Court of the Subordinate Judge an objection petition alleging that he was not liable to satisfy the decree passed against his brother. He denied that the judgment-debtor was the malik and karta of the joint family and gadinashin of the objector’s estate and that the gadinashini system was in vogue in his family. He alleged that he was a sharer in the estate and that his share was equal to that of the judgment-debtor; he further stated that he along with, his brother supervised and managed the estate as malik and that the deceased judgment-debtor never exercised any right over the objector’s estate and that the mortgage did not affect the objector’s property.
2. The Subordinate Judge held that the question raised in the petition of objection could not be gone into in execution proceedings. He further held that the khewat showed that the objector was jointly recorded with the deceased Tekait and that he was a co-parcener of a joint Mitakshara family and therefore, a legal representative within the meaning of Section 2, Clause (11) of the Civil Procedure Code. He also held that the substitution of the objector in the place of the deceased judgment-debtor was not bad and that the question whether he was bound by the decree and was an heir of the Tekait was left open and undecided.
3. In my opinion, this order cannot stand; it is in fact self-contradictory. The Subordinate Judge in the first place refuses to go into the questions raised by the petition of objection on the ground that they cannot be gone into in execution proceedings. He then proceeds to hold on the strength of the khewat that the objector is a co-parcener in a joint Mitakshara family a fact which the objector had denied. This is in reality a decision of one of the objections which the Subordinate Judge had declined to enter into. He then, after making the order for substitution which itself renders the objector liable to satisfy the decree says that the question whether the objector is bound by the decree is left open and undecided. This also seems to be a plain contradiction. It seems to me that as the objector was not a party to the decree, he was entitled to a decision on the points raised in his objection.
4. I would, therefore, allow this appeal with costs and remand the case to the Subordinate Judge for trial of the objection.
Jwala Prasad, J.
5. I agree.