JUDGMENT
1. The plaintiff and appellant, Paratakath Kuriyali, is the karnavan of a tarwad of which the deceased, Paratakath Suliman, was a member Suliman mortgaged the four properties in question to Kakkotakath Moiliar and others, the first four defendants (respondents), who sued him :and obtained a decree ordering the sale of the properties. Suliman having died after decree, the plaintiff was brought in as his representative under Section 234 of the Code of Civil Procedure. It is denied that plaintiff was his representative, but he does not seem to have objected or appealed, and as the self-acquired property of an anandravan, undisposed of at his death, becomes the property of the tarwad, it appears to us that the plaintiff was rightly made a party to the decree. It has not been stated who else could have been Suliman’s legal representative. He even admits that he has taken one of these very properties, as Suliman’s representative, and subject to the mortgage in defendants’ favour.
2. The decree-holders then applied for execution against the four properties as assets of the original judgment-debtor. The plaintiff admitted their right to proceed against a portion of No. 3, but claimed Nos. 1 and 2 as tarwad property–No. 2 having been acquired by another anandravan deceased–and No. 4 as well as the rest of No. 3 as his own personal acquisition.
3. The District Munsif proceeded to investigate these questions under Section 244, as arising between the decree-holders and the representative of the judgment-debtor, and came to the conclusion that all four properties were assets of the deceased and that execution should proceed against them in the regular course.
4. The plaintiff appealed to the District Judge (Miscellaneous Appeal 193 of 1881) whose order (ex. D.) runs as follows: “Section 252 does not apply but Section 234 might apply to ascertain whether the parambas and houses in dispute are properties of deceased come into the hands of the appellant as representative, but still it does not fit the case very well. His claim virtually amounts to a claim under Section 278, and in that case it becomes necessary to determine whether the Munsif had power under Section 244 to decide the point, for, quoad the claim to the property as tarwad property, the appellant is not a party to the suit.” He then went on to state his opinion that even under such a decree as that before him an attachment was necessary before the property could be proceeded against, and he continued: “Quoad the claim to the property as tarwad property, which the judgment-debtor had, as anandravan, no power to encumber, the appellant is not a party to the suit. The Munsif had no power to decide that point; he ought to require the judgment-creditor to attach the property and then the appellant may put in his claim under Section 278.”
5. Eventually the properties were attached and the claim disallowed At the sale the fifth respondent became the purchaser. Plaintiff thereupon brought this suit to cancel the sales.
6. The Munsif dismissed the suit on the merits as regards three of the properties, but upheld plaintiff’s claim to No. 1 and decreed the cancelment of its sale. Both sides appealed on the merits only, but the Subordinate Judge held that the questions ought to have been determined in execution and dismissed the whole suit, allowing no costs on account of the view taken by the District Judge.
7. The question before us is whether, in the circumstances stated, the suit is maintainable, or whether the questions ought to have been determined in execution under Section 244. Mr. Branson for the plaintiff contended that the authorities–Rahiman Khan Samoji Sahib v. Patcha Miyah I.L.R. 4 Mad. 285, Viraraghava v. Venkata I.L.R. 5 Mad. 217, Arundadhi v. Natesha I.L.R. 5 Mad. 391 relied on by the Subordinate Judge–were all cases in which the representative was brought in before decree and might have set up his claim by way of defence to the original suit. That seems to be so, but it does not necessarily make any difference. The questions can be gone into just as fully in execution as in a regular suit and the parties have precisely the same rights of appeal and second appeal. The judgment of the Munsif, who held this inquiry in execution, is just as full and exhaustive as that of the second Munsif who tried the suit. Section 234 provides for the case of a representative brought in after decree, while Section 252 relates to a decree against the representative for money to be paid out of the assets. The liability under these sections is identical.
8. Moreover, Section 234 expressly provides that the Court executing the decree is to ascertain the liability, that is, to inquire whether any particular property in the hands of the representative, or which came to his hands, was the property of the deceased debtor, and, if it has been disposed of, whether it has [258] been duly applied. And Section 244 (c) expressly prohibits any separate suit regarding questions arising between the parties to the suit in which a decree has been passed, or their representatives, and relating to the execution of the decree. The question whether the property mentioned in the decree was available for execution is such a question, and it arose between the decree-holders and this plaintiff, who had been made a party to the decree as the judgment-debtor’s representative. Although it referred to the old Code and to a case in which the representative was joined before decree, the Privy Council’s decision in Chowdry Waked Ali v. Mussamut Jumaee 11 B.L.R. 149, is a clear authority in support of the view adopted by the Subordinate Judge.
9. We shall, therefore, dismiss this second appeal and we see no reason why costs should not follow the result. It is, however, a case in which the plaintiff would be entitled to ask the District Judge to review his order (D) in the Miscellaneous Appeal 193 of 1881.
