Nasim Ali, J.:— This is an appeal by the decree-holders against an appellate order of the District Judge of Burdwan dated 19th February 1934 in a proceeding under Section 47 of the CPC. The appellants obtained a decree in the first Munsif's Court at Krishnagar (Nadia) on 1st February 1932 for Rs. 1,636-10-11 against three ladies, Jagmaya, Padmabati and Bhababhabini for arrears of rent of a tenure inherited by them from their father which accrued after the death of their father. On 6th February 1932 Jagmaya died and on 5th May of the same year Padmabati died. On 22nd June 1932 the sole surviving daughter Bhababhabini surrendered her life interest in the estate left by her father by a deed of surrender in favour of the reversioners. Simultaneously with this deed of surrender, a deed of family arrangement and partition was executed between the reversioners by which the properties surrendered by Bhababhabini were partitioned between them. It appears from the deed of partition that the respondents in the present appeal took upon themselves the liability to pay the outstanding debts of Jogamaya and Padmabati in respect of certain properties including the tenure the rent of which was in arrears. On the application of the appellants a certificate was sent by the Nadia Court to the first Court of the Munsif at Burdwan about the non-satisfaction of the decree on 30th March 1933. An execution case was thereupon started in the Burdwan Court on 1st May 1933 against the reversioners including the respondents in this appeal. Certain properties which the respondents got by the deed of surrender were thereafter attached and time was taken by the judgment-debtors to pay off the decretal dues and from time to time certain amounts were paid towards the satisfaction of the decree. Ultimately on 28th November 1933 the respondents objected to the execution of the decree on the ground that they were not personally liable for the decretal amount. The learned Munsif rejected that objection and allowed the execution to proceed. On appeal by the judgment-debtors to the appellate Court, the learned Judge has set aside the order of the learned Munsif. Hence this second appeal by the decree-holders.
2. The decree under execution is a rent decree. The appellants however do not want to execute it under the provisions of the Bengal Tenancy Act, by attachment and sale of the defaulting tenure which lies in Nadia district.
3. The decree was transferred to Burdwan Court to be executed there as a money decree. It has been already stated that certain immovable properties within the jurisdiction of the Burdwan Court which the respondents have got absolutely by the deed of surrender have been attached by the Burdwan Court. Bhababhabini is not a party to the execution case. The decree is being executed against the reversioners as a money decree. The point for determination is whether the present execution case is maintainable in law in its present form.
4. The appellants' case is that the present application for execution is maintainable against the respondents under Section 50 of the CPC. The word “dies” in that section in my opinion has been used in its natural meaning. It does not include civil death: 53 All 5291. Again the respondents are not the legal representatives of the judgment-debtor within the meaning of S. 50, read with Section 2, Clause 11 of the CPC. The contention of the appellant however is that as the daughters of the last male owner were sued in the rent suit in representative character the estate which the respondents got by surrender as reversionary heirs is liable for the decree which was obtained in that suit. I have already pointed out that the decree for rent was for arrears which accrued after the death of the last male owner. As the daughters were in enjoyment of the rents and profits of the tenure the liability for rent ought to be regarded as their personal liability and ought not to be held as attaching to the reversion unless the appellants proceeded to bring the tenure itself to sale under the special provisions of the Bengal Tenancy Act: see 30 IA 812.
5. The respondents therefore are not the legal representatives of the judgment-debtor in respect of the properties which the appellants want to sell in this execution case within the meaning of Section 50 of the CPC. The learned counsel however contended on the authority of ILR 8 Cal 513 that the respondents were precluded from reopening the question of substitution under S. 50 inasmuch as the order of substitution was made by the Nadia Court after notice to them, and they did not raise any objection to the substitution. Now in order to apply the doctrine of constructive res judicata it must be shown that the respondents had clear notice of the nature of the claim made against them in the Nadia Court. The question of notice is not a pure question of law. This plea of res judicata was not raised by the appellants in the Court below. There are no materials on the record of the present execution case to show the nature of the notice issued by the Nadia Court upon the respondents. There is no finding of the Courts below as to whether any notice was actually served upon the respondents by the Nadia Court. The bar of res judicata cannot be therefore allowed to be raised for the first time in second appeal in this Court.
6. The learned counsel also raised the question of estoppel. It is argued on behalf of the appellants that the payment of money by the respondents from time to time towards the satisfaction of the decree estops them from contending that they are not personally liable for the decretal debts. Now estoppel is not a cause of action. It is a rule of evidence which comes into operation if a statement has been made by a defendant with the intention that the plaintiff should act upon the faith of that statement and the plaintiff does act upon the faith of such statement. The question of estoppel is not a pure question of law. Whether by the payments the appellants were misled in any way or were induced to alter their former position in any way are questions of fact. This plea was not raised in any of the Courts below. These payments were relied on in the trial Court only as tacit admissions of the personal liability of the respondents. This contention therefore cannot be given effect to this second appeal. I am clearly therefore of opinion that the execution case is not maintainable in the present form. In view of the above conclusions the question as to whether the sale of any portion of the estate other than the defaulting tenure which the respondents have got by surrender in an execution against the surviving daughter Bhababhabini will affect the respondents' title cannot possibly arise in the present execution case. But as some arguments were advanced on this question I would like to say a few words in this connexion.
7. The learned counsel for the appellants argued that the decree being a decree for arrears of rent which the daughter did not pay it must be assumed that they did not pay as they could not pay out of the income of the estate and consequently it must be held that the estate was liable for the decretal debt. There is however no foundation for such an assumption. This is not a debt contracted by the limited owner for legal necessity. Therefore if the appellants wanted to realise their decretal dues before surrender by sale of properties other than the defaulting tenure in execution against Bhababhabini they could only sell her right, title and interest and such sale could not in any way affect or bind the reversioners' interest. Again if the execution had been taken against the surviving daughter after the surrender and her interest in properties other than the defaulting tenure had been sold the purchaser would have got nothing as her interest in the estate ceased after the surrender. In this view of the matter the learned District Judge was right in observing that the proper procedure for the decree-holders was to proceed against the defaulting tenure in respect of which the decree for rent was obtained. For the above reasons I dismiss the appeal with costs hearing fee five gold mohurs.
Henderson, J.:— In my judgment the main question for determination in this appeal is whether the rent decree that was passed against the ladies binds the estate. These execution proceedings were taken out on the footing that the last surviving lady surrendered her estate in favour of the reversioners thereby undergoing a civil death and it is from that point of view that the matter has now to be considered. The whole estate is in the hands of the reversioners. Mr. Amarendra Nath Bose, who appeared on behalf of the respondents, did not contest that the appellants were certainly entitled to proceed against the reversioners for the sale of the defaulting tenure. Similarly they can proceed against and bring the other properties to sale provided that the decree binds the estate. In these circumstances it is not a matter of much importance whether the respondents were brought on the record by a misconceived application, assuming that they were liable to the extent of the assets of the deceased in their hands, or whether a new execution case was started against them, as the persons in possession of an estate bound by the decree. Somehow or other, they the before the Court and in my judgment the only question for consideration is whether the properties other than the defaulting tenure are liable to sale. On this point I entirely agree with my learned brother. There is no principle by which such a decree should bind the estate. This is not a case in which the limited owner borrows money for some purpose which comes within the meaning of legal necessity. The debt in fact was not contracted by those persons at all. No question of legal necessity arises in this case; nor was any real attempt made in either of the Courts below to justify the execution of such a decree against the reversioners. I therefore agree that this appeal must fail.
S.R
8. Appeal dismissed.