JUDGMENT
Burkitt, J.
1. This is one of the many cases now pending in appeal before us between the Maharani of Dumraon on the one side and the Narhi taluqa people on the other. The history of the litigation will be found in the judgment in F.A. No. 81 of 1896. (See p. 316 supra).
2. This suit was instituted by a large number of plaintiffs to recover possession of their interest in the property which was sold by public auction on August 20th 1896, and also to recover their shares in the 13 villages sold by the Collector to the decree-holder on February 22nd 1896.
3. The claims of a large number of the plaintiffs were dismissed by the lower Court. This appeal is against the decrees given to some of them. The learned Counsel for the appellant abandons the appeal as to Nos. 23, Musammat Lukhna Kunwar, and 25, Din Dyal, but supports it against the others. The first case is that of No. 24, Swarath Rai. This man, it appears, was not a party to the litigation up to 1866, though his elder brother, Ahlad, was a party to it. It is admitted, however, that Swarath was impleaded in the proceedings for ascertainment of mesne profits which terminated in the decree of March 1st 1877, that he was one of the parties against whom that decree was passed, and that he continued to take part in all the execution proceedings subsequent to the decree of March 1st 1877. Bub it is contended that that decree was wrongly passed against him, in that he was impleaded personally, and not as representing any of the parties to the decree of 1866, in the proceeding for ascertainment of mesne profits which culminated in the decree of March 1st 1877. Further it is alleged that that decree was passed ex parte against him, as no notice of the proceedings for ascertainment of mesne profits has been served on him. It is contended that for this reason the decree of March 1877 is bad and can. be set aside by a regular suit. Further it is contended that all the execution proceedings taken on the decree of March 1st 1877 are bad under the following circumstances.
4. When the amount due for mesne profits was finally ascertained on March 1st 1877, the Court ordered the decree-holder to pay in the sum of Rs. 2,000 deficient Court-fee duty payable on the ascertained amount of mesne profits for which execution was about to issue, to be paid into Court within three days. The decree-holder failed so to pay, and the case was struck off on March 15th, but was reinstated a few days afterwards On payment of the deficient court-fees, and execution then proceeded. It is contended for the respondent that the Court had no power to reinstate the execution proceedings, and that under Section 11 of the Court Fees Act, No. VII of 1870, the Court had no option in the matter, the deficient duty not being paid within the time limited by its order, and was bound to have dismissed the suit, i.e., to have rejected the execution application. As an authority for this contention the case of Kewal Kishan Singh v. Sookhari (1896) I.L.R. 24 Cal, 173, is relied on.
5. I am of opinion that none of the points set forth above can be raised in a separate suit. It is admitted that the decree of March 1st 1877, was passed against Swarath among a host of others. If he were improperly made a defendant in the case in which that decree was given, his remedy was by an appeal against the decree, an appeal which must have been successful if, as he says, he was not one of the parties whose liability to contribute to the mesne profits had been declared by the decree of 1866. Again, if it be, as he says, that the decree was passed against him ex parte without notice, then the law provides machinery by which the decree could be set aside. But this respondent Swarath neither appealed from the decree against him which now has become final, nor has he made any attempt to have it set aside as being ex parte. In my opinion a suit to set aside the decree of March 1877, which is really the object of the present suit, cannot be maintained, the proper procedure being by appeal against that decree. The plea raised on Section 11 of the Court Fees Act is open to the same objection. It is one which Swarath should have taken in appeal. If that plea, and also the plea as to want of notice of the proceedings be well founded, they would have lent most valuable support to an appeal against the decree of March 1st 1877, but they are pleas which should have been taken in appeal against that decree and not by separate suit against proceedings taken in execution of that decree years after it had become final. The case cited from 24 Cal. 193, in no way can be considered an authority in favour of the respondent, for though the judgment does hold that the suit ought, under the circumstances, to have been dismissed, it must be noticed that the appeal which the High Court was hearing was an execution appeal against an order passed in the course of the execution of the decree. Had the respondent here instituted an appeal from the order of the Court reinstating the proceedings on payment of the deficient Court fees duty, very probably he would have been successful. But as he did not institute such an appeal, I am of opinion that he cannot now urge that matter in a suit brought practically to set aside the decree of March 1st 1877, a decree which he might have disputed, and probably with success, by appealing. In my opinion for the above reason the decree of the lower Court ia wrong as to this respondent Swarath. I would allow the appeal as against him with costs and direct his suit to stand dismissed.
6. (sic) respondent was brought into the execution proceedings in 1884 as representative of one Ram Hit, deceased, who admittedly was a party to all the litigation including the decrees of 1856 and 1877. It is contended that he was improperly made a representative of Bam Hit. That probably is so, as Ram Hit left male issue, and Pargas is only a distant relative. But the question as to whether he was or was not properly impleaded as Ram Hit’s representative is one which cannot be raised by a separate suit. It is a question which must be decided under Section 244 of the Code of Civil Procedure in the manner laid down by the last clause of that section. It is perfectly clear that Pargas, when he was impleaded as representative of Ram Hit, did not raise any question as to the propriety of the order impleading him as such. There was therefore no occasion for the execution Court either to decide any question itself or to stay the execution pending its decision in a separate suit. This suit is not the separate suit referred to in Section 244, as it has not been instituted to decide the question as to who is Ram Hit’s legal representative, but has been instituted after execution had been exhausted to set aside the decree on which that execution was had. It is urged on behalf of Pargas that he is liable only at most for any assets of Ram Hit which he may have received (Section 234 of the Code of Civil Procedure), and that the property which has been attached and sold is his own individual property, and that he did not obtain it as heir of Ram Hit. To this plea the answer is that the question as to whether Pargas held the property in dispute as his own property, and so not liable to be taken in execution to satisfy a decree against Ram Hit, or whether he held it as assets belonging to Ram Hit’s estate, and therefore liable to be taken under the decree, is a question which must be decided under Section 244 by the Court executing the decree and not by a separate suit.
7. The law on this point has been very clearly and unmistakeably laid down by the Calcutta High Court in the case of Rajrup Singh v. Ramgolam Roy (1888) I.L.R. 16 Cal. 1, which is founded on the judgment of their Lordships of the Privy Council in Chowdry Wahed Ali v. Mussamut Jumaee (1872) 11 B.L.R. 149, and in a Full Bench decision of this Court in Seth Chand Mal v. Durga Dei (1889) I.L.R. 12 All. 313, which follows and approves of the case in 16 Cal. 1, and overrules certain cases to the contrary in this Court. In those cases it is laid down that it has been settled by a series of cases that questions arising between the decree-holder and the representative as to whether the attachad property has come to the representative as such, and so is liable to be taken in execution, or is the representative’s own property derived from some other source, and therefore not liable to be taken in execution, must (under Section 244 of the Code of Civil Procedure) be decided in the execution proceedings and not by a separate suit. I must therefore hold that Pargas cannot be allowed in this suit to plead that the property sold as against him as representative of Ram Hit was his own property and not derived from Ram Hit. I would for the above reasons allow this appeal against Pargas with costs and would direct that his suit be dismissed.
8. I next take up the case of No. 52, Aprup Rai, No. 53, Nanku Rai, No. 54, Deoki Rai, and No. 55, Musammat Ghurbasi Kunwar. These persons are exactly in the same position as the respondents in F.A. No. 81 of 1896. They were brought on in the execution proceedings as representatives of one Radha Rai. The latter was a party to the decree of 1866, but not to the decree of March 1st, 1877. No one representing him was a party to the latter decree. Therefore for the reasons given by me in F.A. No. 81 of 1896, I would dismiss the appeal with costs against these respondents as far as their interest in the property sold at the auction sale of August 20th, 1896, is concerned as to their interest in the 13 villages transferred to the decree-holder by the conveyance of February 13th, 1886, executed by the Collector on their behalf with their consent, the appeal must be allowed, and that portion of their claim dismissed. Before they could succeed in this matter it is necessary that these respondents should have obtained a decree, formally setting aside the conveyance to which they had assented.
Blair. J.
9. I concur.
