The facts which led to the litigation out of which the present appeal arises may be very briefly stated. On the 15th August 1894, the Respondent obtained a decree for recovery of possession of and for mesne profits against one Radha Nath Singh now deceased and represented in these proceedings by the Appellants. On the 4th August 1903, the mesne profits were finally ascertained by an order of this Court. The decree-holder applied for execution; the immoveable properties of the judgment-debtor were attached and sale-proclamation was Issued. The judgment-debtor then deposited in Court over four thousand rupees and obtained an order for stay of execution. On the 29th November 1904, this sum was paid to the decree-holder in partial satisfaction of his decree. The Court further ordered that “the execution proceedings be dismissed, the attachment to subsist for three months.” On the 11th February 1905, that is, before expiry of the prescribed three months, the decree-holder put in a fresh application, in which he prayed that the execution proceedings might be continued and that after issue of fresh sale-proclamation, the properties previously attached might be sold for realization of the balance of the decree. On that date the Court ordered the issue of sale-proclamation in respect of the properties which had been kept under attachment in the previous execution proceedings. On the 22nd March the Court was informed that the sale-proclamation had not been served inasmuch as the judgment-debtor had meanwhile died, and shortly after, the decree-holder applied for substitution of the sons and grandsons of the deceased as judgment-debtors on the record. Notice was issued and appearance was entered on behalf of these persons; objection was then taken that they had formed with the deceased a joint Hindu family governed by the Mitakshara law, that they had taken the estate by survivorship, that they were consequently not the legal representatives of the judgment-debtor, that the estate was not in their hands assets which could be followed in execution, that the remedy of the decree-holder, if any, was by a regular suit, and that the debt which was sought to be recovered was of such a nature that they were under the Hindu law under no pious obligation to pay it. The Subordinate Judge has overruled these objections and allowed the execution to proceed.

The judgment-debtors now appeal to this Court, and challenge the decision of the Court below, substantially on two grounds, namely, first, that the decree-holder is not entitled to follow the estate in their hands in these execution proceedings and secondly, that they are not the legal representatives of the deceased judgment-debtor.

In support of his first contention, it was argued by the learned vakil for the Appellants that assuming that it was competent to the Court to allow the attachment to subsist for a limited time, upon the expiry of the prescribed time, the attachment ceased to exist, the property passed into their bands by survivorship and did not in any sense form an asset which was capable of being seized in execution. In support of this position, reliance was placed upon the cases of Juga Lal Chaudhuri v. Audh Behari(1), Kali Krishna v. Raghunath(2), Hanumantha v. Hanumayya(3) and Luchmi Narain v. Kunji Lal(4). In our opinion, these cases are completely distinguishable. In the case before us, there was a subsisting attachment on the 29th November 1904, and this was to continue up to the 28th February 1905. During the subsistence of this attachment, on the 11th February 1905, the decree-holder obtained an order for the issue of a fresh sale-proclamation in respect of the attached properties. There was consequently a valid attachment, an order for sale and an issue of sale-pro-olamatlon during the lifetime of the judgment-debtor. It was strenuously contended, however, that the attachment vanished on the 28th February 1905 before the death of the judgment-debtor. We are unable to uphold this contention as well-founded. We must put a reasonable construction upon the order of the 29th November 1904; the object of it obviously was to induce the decree-holder to revive and contlnue the execution proceedings on the basis of the previous attachment with as little delay as possible. The decree-holder was told in substance, that if he chose to revive the execution proceedings within three months, he could avail himself of the existing attachment, but if he delayed beyond the three months, he would have to begin afresh. It could never have been intended that if the decree-holder made an application for sale of the attached properties within the specified three months, and if upon such application, sale proclamation was issued, it would be obligatory upon him to obtain a renewal of the attachment after the expiry of the three months. It was faintly suggested, however, upon the authority of a dictum in the case of Ram Newaz v. Ram Charan that it was not competent to the Subordinate Judge to strike off the execution proceedings and at the same time to maintain the attachment for a limited time. We are not prepared to accept this dictum as well-founded on principle. It cannot be disputed that even if an execution proceeding is struck off, it does not necessarily destroy the attachment and it may be open to the decree-holder to revive the execution proceeding and continue it from the point where it had previously stopped [see the recent decision of the Judicial Committee in Shaikh Kumaruddin v. Jawahir Lal]. It cannot therefore be rightly said that there can be no subsisting attachment because there is no pending execution before the Court. In our opinion it was quite competent to the Subordinate Judge to pass the order of the 29th November 1904, by which the attachment was directed to subsist for three months and it was well calculated to ensure diligence on the part of the decree-holder. Even if it were assumed, however, that the order in question was Irregular, the judgment-debtor could not complain; it was passed in his presence without any exception on his behalf, and whether or not it might have been sufficient for the purpose of avoiding an intermediate alienation in favour of a bonâ fide purchaser, the attachment continued to be effectual as against the judgment-debtor, [see Rai Bal Kishen Rai v. Sita Ram(7)]. It may further be observed that even if there had been no attachment or a defective attachment, but a valid order for sale had been made during the lifetime of the judgment-debtor, as there was undoubtedly in this case, the effect would be the same for our present purposes as that of an attachment followed by an order for sale [see Sivagiri Zemindar v. Tiruvengada(8)] We must therefore proceed on the assumption that there was during the lifetime of the original judgment-debtor a valid attachment followed by an order for sale and that such attachment and order for sale were in full force at the time of the death of the judgment-debtor, though no doubt by the order of the 29th November 1904, the attachment was to subsist only for three months from that date. If this be so, the conclusion is inevitable that the decree-holder is entitled to carry on execution in respect of the interest of the judgment-debtor which had been attached during his life-time. It was laid down by the Judicial Committee in Deen Dyal v. Jugdeep Narain(9), that the right, title and interest of a Hindu father in a joint family estate under the Mitakshara law can be attached and sold in execution of a decree obtained against him personally and the purchaser at the execution sale of such share is entitled to ascertain the same by such partition as the judgment-debtor might have compelled before the alienation of his share took place. If the judgment-debtor dies during the pendency of the execution proceedings and if the execution proceedings have gone so far as to constitute in favour of the judgment-creditor a valid charge upon the joint estate, to the extent of the undivided interest of the deceased, the rights of the creditor cannot be defeated by the death of the judgment-debtor before the actual sale and the creditor would be entitled to continue the execution in respect of the share which has been already attached and ordered to be sold, although it has to the other members of the family by survivorship. [See Suraj Bunsi Koer v. Sheo Proshad Singh]. On the other hand if no proceedings have been taken to enforce the debt in the father's lifetime, his interest in the property would survive on his death to his sons, so that it cannot afterwards be reached by the creditor as assets in their hands. [See Madho Parshad v. Mahrhan Singh]. If these principles are kept in view, it will be seen that the cases on the subject, many of which were, without sufficient discrimination, cited at the bar in the course of argument before us, divide broadly into two classes. The cases of Jugalal v. Audh Behari, Kali Krishna v. Raghu Nath, Ravi Varma v. Koman(12), Hammantha v. Hannumayya, Venkatarama v. Senthivelu(13), Jaggannath Prosad v. Sitaram(14), Lachmi Narain v. Kunji Lal and Gopal Rao v. Berar M. Co.(15), upon several of which reliance was strongly placed by the learned vakil for the Appellants, are all cases in which no attachment had taken place during the lifetime of the judgment-debtor and proceedings in execution had not proceeded far enough to constitute a charge in favour of the judgment creditor which could be enforced against persons to whom the property had passed by survivorship. On the other hand, the cases of Ram Chandra v. Mudheshwar(16), Sivagiri Zemindar v. Tiruvengada and Rai Bal Kissen v. Rai Sita Ram, are all cases in which the decree-holders had, by appropriate proceedings taken in execution during the lifetime of the judgment-debtor, obtained rights over his interest in the joint family property which could not be defeated by his death before actual sale. The principle upon which this distinction is based is perfectly intelligible. As pointed out by Sir John Edge, C.J, in Sheo Prosad v. Hiralal, property under attachment must be considered as in the custody of the law; an attachment does not abate on the death of the judgment-debtor and his death does not render it neoessary for the decree-holder to take any steps to keep in force an attachment made in the lifetime of the judgment-debtor. No doubt, as pointed out by the Judicial Committee in Moti Lal v. Karrabuldin(18), an attachment only prevents alienation, and does not confer any title. But as the property is in the custody of the law, it is only reasonable to hold, that persons who claim to take it should first satisfy the demand, for the ultimate satisfaction of which it has been seized by the Court at the instance of the judgment-creditor. In this view of the matter it becomes unnecessary to consider how far the decisions of two Full Benches of this Court in Ananda Chandra v. Panchi Lal(19) and Shib Kristo v. Kishen Chand(20), upon which reliance was placed by the learned vakil for the Respondent and in which it was said that a judgment-creditor who had obtained an attachment has a charge or lien upon the attached property, have been affected by the decision of a subsequent Full Bench in Frederic Peacock v. Madan Gopal(21). Nor is it necessary, in the view we take, to consider whether the cases of Jagabai v. Vijbhukhan Das(22), and Umed Hatising v. Goman Bhaiji(23), upon which reliance was placed by the learned vakil for the Respondent, and one of which has been dissented from by this Court in Jugalal v. Audh Behari, correctly lay down the rule, that a money decree against the father can be executed after his death against his sons, although execution has not been taken out against the father in his lifetime. In the case before us, execution had been taken out in the lifetime of the father, an attachment had been effected, and an order of sale obtained. We must consequently overrule the first point taken on behalf of the Appellants, and hold that execution may proceed against them in respect of the interest which they have acquired by survivorship.

The second ground taken on behalf of the Appellants raises the question, whether they are representatives of the judgment-debtor within the meaning of sec. 244 of the Civil Procedure Code. It was argued that they have taken the estate by survivorship, and are consequently not representatives of the judgment-debtor. We are unable to hold that there is any force in this contention. As we have already pointed out, the judgment-creditor is entitled to execute the decree against them in respect of the previously attached interest of the original judgment-debtor; to this extent, therefore, the Appellants are the representatives of the judgment-debtor. It was explained in the Full Benoh case of Ishan Chunder v. Beni Madhub, that the term ‘representative’ has not a limited signification, and means a representative in interest. It was further pointed out in Azgar Ali v. Asaboddin Kagi, that the essence of the principle, which underlies the decision in the Full Bench case is that the transferee of the interest of the judgment-debtor, in order that, be may be clothed with the legal character of his representative, must be bound by the decree, that is, must be liable to have the decree executed against him, or against property in which he has an interest; In other words, the test is “can the decree be executed against him, and will he be affected by the sale?” If so, he is a representative. This principle is illustrated by the cases of Lalji Mal v. Nandi Kishore(26), Gur Prasad v. Ram Lal(27) and Surendra Narain v. Gopi Sundari(28). The Appellants are consequently representatives of the deceased judgment-debtor within the meaning of sec. 244, C.P.C, and have been rightly made parties to the execution proceeding.

It was finally suggested on behalf of the Appellants that the debt for the recovery of which the decree had been obtained, was tainted with immorality and illegality, and that they are accordingly under no obligation to discharge It. In the view, we have taken of this case, the question does not arise; the creditor only seeks to sell what he had attached during the lifetime of his judgment-debtor, and the interest of the judgment-debtor which had been seized in execution and had been ordered to be sold, is alone sought to be affected in these proceedings. [See the observations of Bhasyam Ayyanger, J., in Periasami v. Seetharama(29)] But if the question does arise, we would without hesitation answer it against the Appellants. The original judgment-debtor became liable to pay a large sum of money because he had kept the Respondent out of possession of property which lawfully belonged to the latter, and to the profits of which he was entitled. By unlawful receipt of these profits, the judgment-debtor enriched his own estate which has now by survivorship passed into the hands of the Appellants. We cannot discover any intelligible principle upon which a debt of this character may be described as immoral and illegal. On the other hand, we agree entirely with the learned Judges of the Madras High Court in their observations in the case of Natasayyan v. Ponnusami. “The sons are under a pious obligation to discharge the just debts of their father because otherwise he would be liable to be punished in a future state for nondischarge of those debts. Upon any intelligible principle of morality a debt due by the father by reason of his having retained for himself money which he was bound to pay to another, would be a debt of the most sacred obligation, and for the non-discharge of which punishment in a future state might be expected to be infilcted, if in any. The son is not bound to do anything to relieve his father from the consequences of his own vicious indulgences, but he is surely bound to do that which his father himself would do, were it possible, namely to restore to those lawfully entitled, money he has unlawfully retained.”

These observations may be appropriately applied to the facts of the case before us, and establish completely, that there are no merits in the contention of the Appellants.

The appeal consequently falls and must be dismissed with costs. We assess the hearing fee at five gold mohurs.

N.G

Appeal dismissed.