Sir Amberson Marten, C.J:— 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.

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 abate before he made an application to set aside the abatement, and to bring the heirs on the record. But the persons, whom he asked to be brought on the record, were not the true heirs, but one Tirandaj, the brother of the deceased. He did not specifically mention the relationship in his application to the Court, Exhibit 26, but the 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 No. 81 of 1920”. 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”.

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. Order XXII, 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 XXII, Rule 4, which provides 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”.

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 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 had been 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”. Issues were framed, and the order was: “Claim decreed with costs against the estate of the deceased Khodadad Bahiram”. 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 Bahiram. It will, however, appear from another part of the record that the original notice served on Tirandaj was lost. I refer to Exhibit 26.

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 XXII, Rule 4, making the legal representative 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 cart spell out of the documents in the Small Cause 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.

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.

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 plaintiff 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.

In the circumstances of this particular case, 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 of a deceased person, and includes any person who intermeddles with the estate of the deceased”. Order XXII, Rule 4, provides that the Court shall cause the legal representative of the deceased defendant to be made a party.

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, 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 where the Court stated:

“In out opinion a person whom the plaintiff alleges to be the legal representative o£ 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.”

That decision on the then state of the Code I can 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.

The actual decision in Kadir Mohideen Marakkayar v. Muthukrishna Ayyar 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 Sadullakhan Mokasi…Plaintiff v. Bismillabi Sadruddin Kaji…Defendant . is very much to the same effect. But in Mirkha v. Bhagirthibai, 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.

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., (1) Malkarjun bin Shidramappa Pasare v. Narhari bin Shivappa and (2) Khiarajmal v. Daim. In Malkarjun bin Shidramappa Pasare v. Narhari bin Shivappa 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. The 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, then 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.

On the other hand, in Khiarajmal v. Daim, 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 Malkarjun bin Shidramappa Pasare v. Narhari bin Shivappa was distinguishable, and the proceedings were not binding on the true heirs.

Although the present is a case of a money decree. I think the important point of principle underlying it is more easily realised, if one considers sales by the Court of immoveable property. There, as was laid down in Premraj v. Javarmal, 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.

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 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.”

Then at the end after referring to the argument on section 70 the Master of the Rolls said:

“[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.”

Lord Justice Rigby said:

“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.”

On the other hand, in Hewson v. Shelley, the Court of Appeal held that a sale of land by an administratrix was valid, notwithstanding that after the date of the sale, the will of the deceased was discovered, and then probate was granted, and the Letters of Administration recalled. But there 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 Astbury in the Court of first instance upsetting the sale by the administratrix was good law.

In our own Courts in Baswantapa Shidapa v. Ranu and Malkhana, we have a decision somewhat to the same effect as in Jones v. Barnett, 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 he 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 as this case is concerned, there is no question of fraud or anything of that sort.

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 Procedure Code, 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.

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 not 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 not think that necessarily the surety is barred by their conduct.

Accordingly in the view I take, the lower appellate Court arrived at the right conclusion, and therefore this appeal 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 the Court is concerned, the surety may be left to bear his own costs of this appeal.

Accordingly the appeal will be dismissed without costs.

Percival, J.:— I would merely add one remark, namely, that the Court of first instance has referred to Mr. Mulla's comments on Order XXII, Rule 4, at the top of page 669 of the 7th Edition of his Civil Procedure Code. The learned author has there quoted the observation, contained in the head-note of Kadir Mohideen Marakkayar v. Muthukrishna Ayyar 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.

Decree confirmed.

J.G.R