JUDGMENT
Wallace, J.
1. This petition is against the decision of the District Judge of Chingleput in a matter of execution. The counter-petitioner is the transferee-decree-holder in S.C.S. No. 743 of 1920 on the file of the District Munsif of Poonamallee. In that suit which was on a promissory note the plaintiff obtained a decree that the first defendant in that suit do pay him the sum sued for from the estate of the late husband of the promisor. The present petitioner was the 3rd defendant in that suit and was impleaded as one of the heirs of the legal estate of the husband of the promisor. Plaintiff exonerated him in that suit and the suit was dismissed against him. The petitioner sued later on for possession of that estate and obtained a decree on 1st December 1923 for delivery of the estate. In the meantime.the-plaintiff in the Small Cause Suit transferred his decree to the present counter-petitioner who on 29th November 1923, that is, two days before the delivery to the petitioner, attached part of the estate in execution. The petitioner then objected that as the estate was now in his hands it was not liable under the Small Cause decree. Both the Lower Courts have held that if he wanted to free the estate from the burden of the Small Cause decree he ought to have agitated the matter in the Small Cause suit. To this it is objected now that as the plaintiff in the Small Cause Suit chose to exonerate the petitioner in that suit, it was not possible for him to have agitated the matter there.
2. The form of the Small Cause decree is not happy and may not have expressed what the real intention of the Judge was. But, as it stands, it does not direct that
the estate of the deceased now in the hands of the 1st defendant do pay the decree amount.”
3. but that
the first defendant do pay the decree amount from the estate of the deceased.
4. To my mind the judgment-debtor of that decree is clearly not the estate, but the first defendant, whose liability again is limited to liability to meet the decree amount from the estate of the deceased, and the present petitioner is not the legal representative of the 1st defendant but the legal owner of the estate in his capacity as heir of the original owner. It appears to me then that the 1st defendant is the only person against whom execution of that decree could be taken and that it is executable only against her or her legal representative. The case reported in Kaliappan Servaikaran v. Varadarajulu (1909) ILR 33 M 75 : 19 MLJ 651 is in point. But the present case is really a stronger case than that because, not only is the present decree not against the estate of the deceased, but the plaintiff had after adding the 3rd defendant petitioner as a possible heir deliberately exonerated him and chose to be content with a decree against 1st defendant, executable against her only if and while she was in possession of the estate of the deceased. It was open to that plaintiff to have got a decree against the estate in the hands of the legal heir, but he did not choose to do so.
5. The learned District Judge has relied on a case reported in Ramaswami Chettiar v. Oppilamani Chetti (1909) ILR 33 M 6 : 19 MLJ 671 which is hardly in point. In that case the question was 6f selecting a legal representative not for the purpose of representing the estate in the decree but for the purpose of representing it in execution. In that case the decree was clearly enough against the particular individual and therefore against his estate, into whosoever hands it might fall, and therefore the execution could be only against the estate.
6. In the case reported in Gnanambal v. Veeraswami Chelti (1915) 29 MLJ 698 and Bachu Soorayya v. Toomuloori Chinna Anjaneyalu (1918) 36 MLJ 106 the estate though in the hands of the wrong legal representative, had been sold in execution and therefore the sale was held to bind the real heirs. In Angadi Mallappa v. Neelana Gowdrd Kare Gowd (1925) 50 MLJ 442 the decision in Kaliappan Servaikaran v. Varadarajulu (1909) ILR 33 M 75 : 19 MLJ 651 is doubted, but even if that Bench decision goes too far as suggested the present case is distinguishable from Angadi Mallappa v. Neelana Gowdra Kare Gowd (1925) 50 MLJ 442 in that here the plaintiff added the real heir as a party to his suit and then exonerated him.The case in Kadir Mohideen Marakkayar v. Muthukrishna Aiyar (1902) ILR 26 M 230 : 12 MLJ 368 also relied on by respondent was a case of a mortgage decree, which obviously is executable against the property mortgaged, into whosoever hands it fell.
7. The counter-petitioner relies on the fact that at the time of his attachment the estate was still in the hands of the 1st defendant. But the attachment creates no charge over the property for the decree debt and will not prevail against a delivery to the petitioner in execution of his decree. As I read the decree, it is only the first defendant’s property which could be attached whether that property was originally her own or had come to her from the husband of the promisor. The attachment does not avail against property which is not hers and is now declared to be not her property but the petitioner’s property and therefore not liable for the decree.
8. Apart then from the question whether or not the decree against the first defendant was vitiated by fraud, into which it is not necessary to go, it does not appear to me that it is open to the present decree-holder to take out execution against property in the possession of the petitioner as he is not the representative of the judgment-debtor under the decree. I think the Lower Courts have seriously erred in the matter. I must reverse the orders of the Lower Courts and direct that the attachment, as it is contrary to law, be released. The present petitioner will get his costs throughout in all Courts.
