JUDGMENT
Marten, C.J.
1. The main trouble in this case has been caused by irregularities in the procedure adopted in the Small Causes Court, Poona. The point is whether the plaintiff can be held liable as surety under a bond which he entered into in the Small Causes Court to pay a certain claim up to Rs. 1,000, if the principal debtor, one Khodadad, did not pay, there having been an ex-parte decree passed against Khodadad in favour of the Marwadi, who is the defendant-appellant in the present case. That ex-parte decree was set aside on the terms inter alia that the surety should give security in the way I have mentioned.
2. In 1919 the defendant Khodadad died. He left a widow, two minor sons and a daughter, who in fact were all in Persia. Khodadad was a Parsi. The Marwadi allowed over six months to expire and the suit to be abated before he made an application to set aside the abatement, and to bring the heirs on the record. But the person, whom he asked to be brought an the record, was not the true heir but one Tirandaj, the brother of the deceased. He did not specifically mention the relationship in his application to the Court, Exhibit 26, but [she matter came before the Judge on October 7; 1920, and according to certain official notes on page 5 of the additional paper book before us, he passed the following order:
The order of abatement is set aside on the terms given in the order in Miscellaneous Application 81 of 1920.
3. Now, the Miscellaneous Application No. 81 of 1920 was the application Exhibit 26, which I have just referred to, and the actual order made was:
The affidavit of petitioner shows that he could not trace the heirs of the deceased defendant within six months by his death. The order of abatement is set aside. Plaintiff to bear the costs of this application, and one-fourth of his costs in the suit are disallowed for failure to apply to join the heirs within six months.
4. I take it to be clear then that the terms referred to in Exhibit 24 are these conditions as to costs which are set out in the actual order in Exhibit 26. It will be seen therefore, that neither in Exhibit 24, nor in Exhibit 26, is there any other order except that of abatement. There is no direction as was asked in the application that the name of the heir should be brought on the record, and that the plaint should be amended. It may be, if one looks at the rules, that it would be sufficient to set aside the order of abatement without more. O. 22, Rule 9, deals only with the setting aside of an order of abatement, and does not in itself provide for the heirs being added. The joinder of heirs comes under a different rule, viz., Order 22, Rule 4, which provide that:
the Court on an application made in that behalf shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
5. Then what happened was that apparently a notice was issued to the man Tirandaj named in the application, and it may be assumed that it was a notice to show cause why an order for Setting aside abatement should not be made and why he should not be added as a party. That, of course, was given before the actual order setting aside the abatement was made. But as to whether any further notice was given to Tirandaj that he hadbeen added and of the hearing of the suit, the record is silent. What is stated in Exhibit 2 is:
The original defendant being dead his heir who is duly served is absent.
6. Issues were framed and the order was:
Claim decreed with costs against the estate of the deceased Khodaded Behram.
7. Then, in Exhibit 23, there is a statement that :
the suit having been mentioned for final decision in the presence of the plaintiff’s pleader and the defendant’s pleader, it is hereby ordered that the plaintiff’s claim is decreed with all costs from out of the estate of the deceased Khodadad Behram.
8. It will, however, appear from another part of the record that the original notice served on Tirandaj was lost. I refer to Exhibit 26.
9. Now, stopping there for a moment, we think that it is not shown that the Court ever made an order, as it should have done, under Order 22, Rule 4, making the legal representatives of the deceased defendant a party to the suit. In neither of those two documents I have above referred to, is there any such express order, and though we are anxious to remedy mistakes, if mistakes have been made, still we do not feel we can spell out of the documents in the Small Causes Court an implied order to that effect. And when we get the actual decree that the Court passed, that, in the view I personally take, was in a wrong form. The Court was not administering the estate of the deceased. It had no right, in my view, to make an order that a certain sum was to be paid out of the estate of the deceased. The proper order ought to have been against a particular individual limiting his liability to the extent of the assets come to his hands as representing the estate.
10. So, it appears to us that we really have not got here, in the first place, an order “deciding this suit against the deceased applicant” within the meaning of the surety bond which the surety entered into. These are questions between principal and surety, and have to be decided strictly. We all know that little slips like giving time to a principal debtor without the leave of the surety will result in the surety being discharged. Even assuming the Court below was correct in thinking that the surety bond would apply to a decree against the applicant or his duly constituted representatives, we do not think it necessarily applies to a decree which is not binding on the applicant’s estate. However, it has been pointed out to us that this point does not seem to have been urged in the Court below, and that accordingly, it is not one which should prevail in an appellate Court. Personally I do not take that view in a case like the present, because I think it is essential to see that the person trying to make the surety liable satisfies the conditions of the bond.
11. But even assuming a different view was taken of the above, and that there was a valid decree, and even assuming that this man Tirandaj was added as a party, and that the decree must be read as a judgment against him as representing the estate to pay the amount, a further serious point arises. Tirandaj was not the heir ; the widow and children were ; and although we of course accept the finding that the plainti|f acted bona fide in making him a party, and was unaware of the existence of the widow and children, still a point arises as to whether, under” these circumstances, a decree obtained against a person, who is not the legal representative of the deceased, can be binding on the estate and on the persons rightly entitled to that estate.
12. In the circumstances of this particular ease, we think the lower appellate Court was right in holding that the decree is not binding, and that it cannot have the consequence of making the surety liable to pay what would be due from him under the surety bond in other circumstances. In the first place the Code has been deliberately amended as regards the definition of a legal representative, and Section 2(11) provides that
a legal representative means a person who in law represents the estate or a deceased person, and includes any person who intermeddles with the estate of the deceased.
13. Order 22, Rule 4, provides that the Court shall cause the legal representative of the deceased defendant to be made a party.
14. It is very material to observe that that wording has been altered from the old Code, which provides in effect that the Court was to cause a person who was alleged to be the legal representative to be made a party. That alteration in the Code explains the dictum in Kadir Mohideen Marakkayar v. Muthukrishna Ayyar [1902] 26 Mad. 230, which was relied on by the learned trial Judge and which was cited by the appellant in the present case. I refer to p. 234 (26 M.) where the Court stated:
In our opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name the Court enters on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit, and in the absence of any fraud or collusion the decree passed in such suit will bind such estate.
15. That decision on the then state of the Code I San quite follow the Court making. But now the wording of the Code has been altered. I think it is going too far to say that it is sufficient for an applicant to allege that a particular person is the legal representative to enable a decree to be made which should be valid against the true heir, although that heir is not a party to the suit.
16. The actual decision in Kadir Mohideen v. Muthukrishna Ayyar [1902] 26 Mad. 230 can be supported on quite different grounds, viz., that there was undoubtedly one true legal representative of the deceased on the record, and it was not necessary for the validity of the decree that all the heirs should be brought on the record. A decision of Sir Norman Macleod and Mr. Justice Shah in Jehrabi v. Bismillabi A.I.R. 1924 Bom. 42O, is very much to the same effect. Bat in Mirkha v. Bhagirathi [1918] 43 Bom. 412, a decision of Mr. Justice Heaton and Mr. Justice Hayward, it was considered that the main authorities which allowed one individual member of a family to represent the whole family, for instance, in some cases the manager of a joint Hindu family, did not apply to, or at any rate should not be extended to, the case of Mahomedans. Here we have to deal with the case of a Parsi. But whatever may be the true view in that respect, we have not got here even one undoubted legal representative, and consequently the case is clearly distinguishable from those I have just stated.
17. Then there are two other cases which illustrate well the decisions on either side of the line. They are both decisions of the Privy Council, viz., Mulkarjun v. Narhari [1900] 25 Bom. 337 and Khiarajmal v. Daim [1904] 32 Cal. 296. In Malkarjun v. Narhari [1900] 25 Bom. 337 the Court had not only allowed a notice to be served on a person as representing the estate but had definitely held after argument that he was the right representative. That decision in fact was erroneous. Subsequently in the suit certain property was sold, and later on the question of the title of the purchaser came under consideration. There the Privy Council held that the Court had jurisdiction to decide whether the person added was the right person or not, and having come to a particular conclusion, whether right or wrong, which was not in fact appealed, that particular decision could not be afterwards challenged, so as to oust the title of the purchaser, because it would be almost impracticable for the purchaser to have to see whether the orders of the Court after argument were correct or not.
18. On the other hand, in Khiarajmal v. Daim [1904] 32 Cal. 296, where similarly a wrong person was added as a legal representative, the Board held that the lower Court had never exercised a judicial discretion on the point, and that, accordingly, Mallearjun v. Narhari [1900] 25 Bom. 337 was distinguishable, and the proceedings were not binding on the true heirs.
19. Although the present is a case of a money decree, I think the important point of principle underlying it is more easily realized, if one considers sales by the Court of immovable property. There, as was laid down in Premraj v. Javarmal [1912] 15 Bom. L.R. 41, it would be quite wrong as a general principle in a suit against A to sell the property of B, who is not a party to the suit. I appreciate of course that no sale at any rate at present is involved in this particular suit that we have to deal with but I see no difference in principle between the present case and a mortgage or other suit where wrong representatives are brought on the record.
20. In this particular I should like merely by way of illustration of the general principles of law, to refer to two English authorities. There is a provision under Section 70 of the Conveyancing Act of 1881, which gives protection to purchasers under Court sales from any objection on the ground of want of jurisdiction, or want of concurrence, consent, notice or service. But as was held in Jones v. Barnett [1900] 1 Ch. 370 by the Court of appeal, this section was not intended to enable the Court to sell B’s property when it was intended only to sell A’s. Lord Lindley said at p. 374:
In making the order for sale the Court was dealing with property which it did not decide, but which it assumed, to belong to Isaac “Jones. The order dealt with the property as being his.’ It turns out that at that time it was not his at all, but that it belonged to Mary Jones.
21. Then at the end, after referring to the argument on Section 70, the Master of the Rolls said (p. 375):
They ( the Legislature ) could not have intended to enable the Court to sell the property of B, when it supposed it was selling the property of A, B not being a party to the (proceedings.
22. Lord Justice Rigby said (p. 375):
In my opinion Section 70 was not intended to entrap the Court into dealing with property with which it had no idea that it was dealing.
23. On the other hand, in Hewson v. Shelly [1914] 2 Ch. 13 the Court of appeal held that a sale of land by an administratrix was valid, notwithstanding that after the date of sale the Will of the deceased was discovered, and then probate was granted and the Letters of Administration recalled. But there was a deliberate grant of Letters of Administration, and, as pointed out by the Court, nobody could safely deal with an administratrix, if the decision of Mr. Justice Ashbury in the Court of first instance upsetting the sale by the administratrix was good law.
24. In our own Courts in Baswantapa i Shidapa v. Ranu [1884] 9 Bom. 86 we have a decision somewhat to the same effect as in Jones v. Burnett [1900] 1 Ch. 370 viz., where a man brings a suit to enforce a debt owing by the deceased, and makes the wrong persons defendants as representing that estate, any decree that be obtains will not be binding against the true representatives or heirs in the absence, of course, of fraud or anything of that sort. I should perhaps have stated that, as far this Court is concerned, there is no question of fraud or anything of that sort.
25. Giving, then, my best attention to the arguments that have been addressed to us on this point, I think that, on the alternative ground relied upon by the lower appellate Court, this decree was not binding on, and cannot be enforced against, the surety. I appreciate that under Section 145 of the Civil P.C. his liability in ordinary cases would be determined in execution proceedings under the decree. But there is authority to show that the plaintiff, in such a case, may bring a separate suit to enforce his rights against his surety. I think it was open to the surety here to take proceedings in a separate suit to negative his liability under this particular decree.
26. In saying this, I do not overlook the argument that the widow and children are out of time in disputing their liability, if any, under this decree. But that matter has sot been gone into in sufficient detail to satisfy us whether that is correct even from the narrow point of limitation. In any event, and however they may be circumstanced as regards laches, I do dot think that necessarily the surety is barred by their conduct.
27. Accordingly, in the vie. I take, the lower appellate Court arrived at the right conclusion, and therefore this appear ought to be dismissed. But, as regards costs, there is one matter which has been brought to our attention, and that is what the lower appellate Court states in para. 5 of the judgment as to the information on which the plaintiff acted. His evidence was that he was informed by the surety that the deceased had left a brother Tirandaj. The surety on the other hand deposed that he informed the defendant about the existence of the widow and children of Khodadad. The lower appellate Court has expressly disbelieved that story of the surety, and. as I read that judgment it has in effect, found that the surety suppressed his knowledge of the existence of the widow and children, and told the plaintiff his brother was the heir. That being so, I think, at any rate, so far as this Court is concerned, the surety may be left to bear his own costs of this appeal.
28. Accordingly, the appeal will be dismissed without costs.
Percival, J.
29. I would merely add one remark, namely, that the Court of first instance has referred to Mr. Mulla’s comments on Order 22. Rule 4, at the. top of page 669 of the 7th edition of his Civil P.C. The learned author has there quoted the observation contained in the head-note of Kadir Mohideen Marakka yar v. Muthukrishna Ayyar [1902] 26 Mad. 230 to the effect that, if there is no fraud or collusion, a person sufficiently represents the estate of the deceased for the purpose of a suit if he is brought on the record by the plaintiff. In regard to that observation, two remarks may be made. In the first place, as has already been pointed out by the learned Chief Justice, that case was a case under the old Code before 1908, when the provisions were different from what they are now.. But, besides this, even taking the case as it stands, the above words go rather beyond the decision in the case, because in that case one of the legal representatives was actually brought on the record. I make these remarks merely because the trial Judge in this case appears to have been led astray by that observation, which is not quite correct in the present state of the law on the subject.
