Jenkins, C.J:— In my opinion no case is made for a rateable distribution under section 295 of the Civil Procedure Code. It is useless to speculate as to any other test than that which the section itself provides, and that test is stated in the plainest terms. So far as the present case goes, it is enough to say that the money decrees must be against the same judgment-debtor. Here, however, one decree is against Bhau Babaji Jangam and thet other is against his son Kashinath.
It is true that the second decree is expressed to be against “Bhau Babaji Jangam, deceased, by his son Kashinath but this incorrect mode of expression can make no difference. It is due to the erroneous practice which prevails in the mofussil Courts of this Presidency, according to which a dead man is expressed to be a party to a suit by his heir. A circular has recently been sent to the several Courts drawing attention to this matter, and request in amendment, so that I hope the practice has now become a thing of the past. It is so obvious that one hesitates to make the remark, but it is the fact that a dead man cannot be a party to a suit. It cannot too, in this case, make any difference that the decree is expressed further to be “against the deceased's estate: that does not make Bhau a judgment-debtor in respect of a decree in a suit commenced after his death. The interpretation of “judgment-debtor” in section 2 and the phraseology of section 234 of the Civil Procedure Code leave no doubt on the point. The rule, must therefore be discharged.
Chandavarkar, J.:— I am also of opinion that section. 295 of the Code of Civil Procedure has no application to the facts of the present case.
Those facts are:— In suit No. 1195 of 1899 one Mohoniraj Vinayak Jakhadi obtained a money decree against Bhau Babaji Jangam in the Subordinate Judge's Court at Sinnar. The judgment-debtor, Bhau Babaji Jangam, having died after the decree, the decree-holder Mohiniraj presented a darkhast for execution after bringing on the record Bhau's son and heir Kashinath as his legal representative. The deceased judgment-debtor's property was then attached.
The present applicant thereupon applied to the Court for rateable distribution under section 295, as he held a decree obtained against Bhau Babaji Jangam deceased, by his son Kashinath and against the deceased's estate.
Section 295 requires that the decrees in respect of which rateable distribution has to be made must be decrees against the same judgment-debtor. “Judgment-debtor,” as defined in the Civil Procedure Code, means “any person against whom a decree or order has been made.” The decree obtained by the present applicant is against Bhau Babaji Jangam, deceased, by his son and heir Kashinath. Can it be said to be a decree against Bhau Babaji? It is a decree passed against Bhau's legal representative whereas the decree obtained by the opponent Mohoniraj was against Bhau himself. It cannot be said, therefore, looking to the names of the parties, that the two decrees are against the same judgment-debtor. It is true that the estate that is liable in the case of both the decrees is the estate of the deceased Bhau but section 295 does not make the nature of the liability under the decrees comtemplated by it one of the essential conditions for the application of the section.
If, again, we consider the question by the light of other sections in the Code, which relate to a legal representative, we arrive at the same result as that indicated by the definition of the term “judgment-debtor,” showing that a decree obtained against A while he is alive and a decree against B after A's death, as A's legal representative, are not against one and the same judgment-debtor. Section 234 provides for the execution of a decree where that execution is sought after the judgment-debtor's death. It is the deceased in that case who is, according to the terms of that section, the “judgment-debtor.” Where on the other hand, a person is sued from the beginning as the legal representative of a deceased person, the person so sued is the defendant, and, according to section 50 of the code, the plaint must show that he is interested in the subject-matter of the claim and that he is liable to be called upon to answer the plaintiff's demand as the legal representative of the deceased. In such a case, if the person sued is the legal representative as alleged, a decree must be passed against him as such representative where the liability of the deceased is proved, whether he (the representative) has assets or not belonging to the deceased the question of his liability to the extent of the assets that have or could have come into his Bands being left to be determined in execution—Girdhalal v. Bai Shiv. In other words, the decree is passed against him, and he is therefore the “judgment-debtor.” The result is the same where the legal representative of a defendant is brought on the record in the event of the defendant dying in a pending suit. In that case section 36S provides that “the case shall thereupon proceed in the same manner as if such representative had originally been made a defendant and had been a party to the former proceedings in the suit.” Where however, a defendant dies after a decree has been made against him, his legal representative “may”—not “must” as in the other case—be brought on the record, and he can in that event be brought on the record under a different section, i.e, section 234 of the Code, which does not say that after he has been brought on the record he shall be proceeded against as if he had been originally a defendant. He is, according to the section, simply the legal representative of the deceased, but it is the deceased who is the “judgment-debtor.” It is true that he becomes a “judgment, debtor” within the definition of that term when an order is passed against him in execution proceedings, but that does not entitle his judgment-creditor to claim rateable distribution under section 295, for the terms of that section require that “the decrees not “orders”—should be, against the same “judgment-debtor.” Applying these considerations to this case before us, it is obvious that the decree obtained by the present applicant was against Bhau's son and heir, Kashinath, who must be regarded as his “judgment-debtor,” whereas the decree obtained by the opponent was against Bhau as his judgment-debtor. The opponent by bringing Kashinath as the legal representative of Bhau on the record in his execution proceedings and obtaining an order for execution as against Kashinath as such representative, has no doubt made him his “judgment-debtor,” according to the definition of that term in the Code. But though that order obtained by the opponent and the decree obtained by the present applicant are against the same “judgment-debtor” (i.e, Kashinath), yet the decree of the former is against Bhau, whereas the decree of the latter is against Kashinath, and it is the decrees and not the orders passed in execution which form the test for a rateable distribution under section 295 of the code. The present application must therefore fail. I agree, for these reasons, in holding that the rule must be discharged.
Rule discharged.