Mukerji, J.:— The facts involved in this appeal are briefly these. A certain person, Abdul Qayum, whose heirs-at-law the defendants are, borrowed, on a bond, on the 16th of March, 1921, a sum of Rs. 300 from the plaintiffs. He having died before the institution of the suit it was filed against his heirs. Among the heirs was the original appellant to this court, Musammat Tamiz Bano who was a widow of the deceased and is since dead. She denied the execution of the bond by, her late husband and said that, on the death of her husband Abdul Qayum, her dower of Rs. 25,000 was due to her and that consequently the remaining heirs of Abdul Qayum sold his property to her in lieu of her dower. She did not say exactly what the effect of her defence was, but clearly she contemplated that the suit could not be maintained as no property of Abdul Qayum was left in the possession of his heirs.

The other defendants did not contest the suit.

The Munsif decreed the suit. He did not come to any very definite finding as to the allegation of sale in lieu of dower. He said:

“I am not inclined to hold that the debt of Rs. 25,000 had been proved. There is nothing to prevent the plaintiff from proceeding against the property at present in the hands of the contending defendants as assets of Abdul Qayum.”

On appeal the learned Subordinate Judge doubted that the transfer was really a genuine transaction, but he said that he was not going to decide What was Musammat Tamiz Bano's dower and he dismissed the appeal.

In this Court it is said that the lower appellate court should have come to a clear decision as regards, the alleged transfer in lieu of dower and that no decree could be passed against the original appellant, Musammat Tamiz Bano, so long as it was not proved that she was in possession of any asset of her husband. I might mention here that Musammat Tamiz Bano having died pending the appeal, some of the original defendants are now prosecuting the appeal as her heirs.

It appears to me that the question whether the legal representatives of a deceased debtor are or are not in possession of any asset of the deceased need not be tried at the present stage of the litigation. When deceased debtor dies a suit has to be brought against his legal representative. For this proposition no authority need be quoted. The expression “legal representative” has now been defined in the Code of Civil Procedure in section 2, clause (11), as follows:—

“Legal representative means a person who represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased, and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party suing or sued.”

It will be noticed that where a party is sued in a representative character the legal representative is the person on whom the estate devolves. It is not necessary for his character as legal representative that he should be in possession of any property of the deceased. All that is necessary is that he should be a person on whom the estate would devolve. It is only when a third party intermeddles with the estate of a deceased person that he can be treated as a legal representative and it is then alone that the question of possession arises. In this view it was not necessary for the plaintiffs to say, as they did in paragraph 2 of the plaint, that the defendants Nos. 1 to 5 were in possession of any property left by the deceased Abdul Qayum.

The same conclusion may be drawn from an examination of section 52 of the Code of Civil Procedure. That section says that where a decree is passed against a party as the legal representative of a deceased person and the decree is for payment of money out of the property of the deceased it may be executed by attachment and sale of any such property. Further, it says, where no such property remains in the possession of the judgement-debtor and he fails to satisfy the court that he has duly applied such property, he would be liable to the extent of the property as to which he has failed to satisfy the court. The section shows that there may he a decree passed against the legal representative of a deceased person without showing that the deceased left any property and the legal representative got that property. A suit may be brought against the legal representative of a deceased person oven after such person has duly applied the property he inherited and has, therefore, ceased to be further liable for payment of any debt. A creditor has a perfect right to obtain a decree for his debt and then to find out how he would realize it. Till he has obtained his decree he cannot seek any remedy to enforce payment. His remedy to enforce a decree for money is indicated by section 52. That remedy is by attachment and sale of an asset of the deceased debtor. When an application for attachment is made it is open to the legal representative to prove either that the property sought to be attached is not the, property of the deceased or that he has sufficiently accounted for such property of the deceased as came into his possession. But in any case till a decree has been obtained by the creditor, he has no remedy. The same view was taken in Girdharlal Krishnavalabh v. Bai Shiv and Lallu Bhagvan v. Tribhuvan Motiram, , under the Code of Civil Procedure of 1882.

In the circumstances I think the lower appellate court was right in not deciding the question of sale in lieu of dower. The stage for any such decision has not arisen. Even if there be no immovable property left, such as may be taken in execution of the decree, the plaintiffs, if they be armed with a decree, might seek out, in the course of twelve years within which they can execute the decree under the law, any movable property that may still be available. I am strongly of opinion that it is neither lawful nor expedient to throw out the suit altogether simply because one of the legal representatives alleges and seeks to prove that no assets are available.

In this view of the case the appeal must fail as no other point has been urged. I would dismiss the appeal with costs.

Ashworth, J.:— I concur in the finding but not with the reasons of my learned brother. This second appeal arises out of a suit brought by the respondents against three persons, the present appellant. Musammat Tamiz Bano, widow of Abdul Qayum, and his two sons as legal representatives of Abdul Qayum, on a bond debt of Rs. 300. There was an allegation in the plaint that they were in possession of the property left by Abdul Qayum. Only the widow defended the suit and her main plea, the only one with which we are concerned in this appeal, was that the whole of the assets of Abdul Qayum were used by herself and the two other defendants to pay her, dower debt.

Both the lower courts held that this disposal of the assets was designed to defeat the creditors including the plaintiffs. The trial court doubted the existence, of any dower debt and the lower appellate court the existence of one of this magnitude. They decreed the suit against all three appellants as against “the assets of Abdul Qayum and at present in the hands of the widow defendant.”

In this second appeal the pleas pressed are that the lower courts should have come to a clear finding as to the existence and amount of the dower debt and that the suit should have been dismissed if the dower debt exceeded the assets, since the defendants were entitled to use the assets for satisfaction of the dower debt.

The first question, therefore, to decide in this appeal is whether the defendants, as legal representatives of the deceased Abdul Qayum, were entitled to use his assets to pay the defendant widow her dower, if proved. There can, in my opinion, be no doubt that they were. In English law the widow would possess this right of retainer and the other two-defendants this right of preference. The law is stated in Jenks' “Digest of English Law” (1st edition), paragraphs 2165 and 2166, pages 1378 and 1379 and supported by reference to numerous authorities. In Stephen's “Commentaries” (1st edition), volume II, pages 651 and 652, the right of retainer is based on the consideration

“that a personal representative in his personal capacity could not sue himself at law in his representative capacity and that it would be hard that this difficulty should deprive him of the natural advantages of his position.”

The right of preference (pages 652 and 653 ibid) is said to have arisen thus:

“Inasmuch as any creditor of the deceased could sue the personal representative and get judgement from him, unless the representative was in a position to plead plene administravit the only remedy of the representative at common law was to pay the debt and avoid further consequences.”

And if he could do that after action was brought, was he bound to wait (if he was satisfied of the genuineness of the debt) until action was brought and costs incurred? Thus, it is said, the personal representative acquired his peculiar right, which is obviously liable to abuse and collusion. These considerations apply equally in India, Indeed the right of preference is the natural consequence of a legal representative possessing the privileges of the deceased; and the right of retainer is only a form of the right of preference. I would refer to the following Indian cases in support of this view:—Seth Kastur Chand v. Mangal Sen and Haji Saboo Sidick v. Ally Mahommed and Veerasokkaraju v. Papiah. I hold, therefore, that legal representatives in the possession of assets (not being executors or administrators appointed by or subject to an administration order of a court) may show preference in the payment of debts and may retain a debt due to themselves. With this view my learned brother agrees, I understand, although lie considered that the question did not arise in the suit.

The next question is whether by reason of such retainer and preference the defendants were entitled to resist the suit on the ground of plene adminisiravit or, to use the language of section 52(2) of the Code of Civil Procedure, on the ground of having already duly applied such property of the deceased as is proved to have come into their possession. I have not been able to find any decision in India on the point. My learned brother would reply in the negative. It is not that he denies that the plea of plene administravit may be a good plea by which to resist execution against the assets in the hands of the defendants, but he thinks that this plea can only be raised in execution proceedings and not in a suit against a legal representative. For this view he relies on the language of the definition of “legal representative” contained in section 2(11) of the Code of Civil Procedure, and on the provisions of section 52 of the Code. They are as follows: Section 2(11):—

“‘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, and, where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued.”

Section 52—

“(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

(2) Where he such property remains in the possession of the judgement-debtor and he fails to satisfy the Court that lie has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgement-debtor to the extent of the property in respect of which lie has failed so to satisfy the Court in the same manner as if the decree had been against him personally.”

His argument is that under the definition the legal representative of a party sued in a representative character is described as “the person on whom the estate devolves” without any such qualifying words as “unless he has duly applied the estate.”. No doubt a legal representative is such, irrespective of whether at the moment of suit he is in possession of or is likely to acquire any assets, and under order XXII, rule 4, he can be brought on the record. It does not follow that there is any right to a decree against every legal representative, or that he cannot plead due application of all the assets of the deceased. As to section 52 the argument appears to be as follows. The section provides for the plea of due application of the assets, i.e, of plene administravit being taken in execution proceedings. Therefore it must be inferred that it cannot be taken at an earlier stage, namely, in the suit.

In English law the plea of plene administrvit could certainly be raised by a legal representative sued on a debt due from the deceased. In Jenks' “Digest of English Law” (1st edition), page 1369, paragraph 3253, it is stated:

“The liability of the personal representative, as such, to pay the debts on legacies of the deceased is primâ facie limited to the amount of the assets which he has received or which but for his wilful default be might have received. And a plea that he has fully administered the assets is, if proved, a defence to any claim by a creditor or a legatee. The liability of the heir, devisee or special occupant is similarly limited.”

And in Oxenham v. Clapp the plea of having fully administered was allowed even to an executor de son tort. Is this plea to be denied a legal representative in India merely on the ground that while section 52 of the Code of Civil Procedure specifically permits it to a legal representative in execution proceedings, there is no section of any Indian Act which either specifically or by implication provides for the plea being taken in the course of the suit on the debt? To hold this would be straining beyond all measure the maxim of unius inclusio alterius exclusio est. The fact that the plea of plene administravit can be taken in execution proceedings when events justifying such a plea may have occurred subsequent to the decree is no reason why it cannot be taken in the suit as a reason for no decree being passed. No doubt there is a presumption that a person who has come into the possession of any assets still has, or will have, assets to meet the claim, but this presumption arises from the burden of proving the contrary hieing on him as the person with special knowledge, of the administration. But the presumption is one, of fact and can be rebutted by evidence of due application of all the available assets. Take the case of an executor who has wound up an estate after advertisement for claims. Is a decree to be passed against him merely because he is the legal representative?

Indeed it would appear than a person sued for a debt as legal representative can resist the suit either on the plea that as the deceased left no assets, he can have no legal representative (since the expression has reference to some estate and does not mean merely a relation who would have been the heir if any property had been left) or again on the plea that he has duly applied all the assets available or proved to be available.

My conclusion then is that the lower courts were bound to decide the question whether the defendants had duly applied the assets that had come into their hands, and this required a decision as to the fact and amount of the dower debt.

Now I think that the trial court intended to find as a fact that there was no dower debt proved, and the lower appellate court that no dower debt of a specific amount was proved, which comes to the same thing. This is a finding of fact by which we are bound in second appeal.

The suit was, therefore, rightly decreed; but as the defendants were held to have had assets and to have wrongly applied them, the decree should have been a personal decree against them, jointly and severally, as they all admit a share of the assets excluding the debt claimed: Nathuram Siriji Sett v. Kutti Haji and Mihi Lal v. Babu Lal. The decree as it stands is wrong as it restricts the plaintiffs to execution against the assets of Abdul Qayum; but as no appeal has been filed by the plaintiffs it must be deemed that they are satisfied with the decree against the assets. I. therefore, concur in dismissing the appeal with costs.

By the Court.— The appeal is dismissed with costs.

Appeal dismissed.