1. In this case the appellant is the holder of a decree for sale on a mortgage executed by one Mt. Rahas Kunwar. He obtained a preliminary decree for sale under the Transfer of Property Act, before the present Code of Civil Procedure came into force. Mt. Rahas Kunwar died before any order absolute for sale had been passed. The decree-holder then applied to bring three minors, under the guardianship of their mother, on record as the legal representatives of Mt. Rahas Kunwar and for the preparation of a final decree for sale against the said minors as such legal representatives. No appearance was entered on behalf of the minors and an ex parte decree was passed as applied for. Subsequently, a petition was presented on behalf of the minors for the setting aside of the said decree. The difficulties which have been felt by the Courts below arise out of the manner in which this petition was dealt with. It was formally rejected, but the Court at the same time ordered the decree absolute for sale to be amended.
2. I think we must take it that the result was that the application to have the decree set aside altogether was rejected but that the Court ordered the decree to be amended in a particular manner. Whether this was or was not a proper method of dealing with the application then before the Court does not now concern us, as the parties have submitted to the decree.
3. The amendment ordered to be made was that the Court declared that the decree should affect only the estate of Mt. Rahas Kunwar and should only be executable against property in the hands of these minors in the capacity of legal representatives of Mt. Rahas Kunwar. The Court added, further and I do not think it is material whether or not this addition be treated as incorporated in the decree, that if the minors would institute a regular suit for the establishment of their title within a month; execution of the decree for sale would be postponed. It appears that two suits for the establishment of title were in fact instituted on behalf of the minors, one after the other but both were suffered to be dismissed for default. To this application for execution objection has been taken by the two survivors of the three minors originally brought upon the record. One of these, Basanti Lal, is now a major and is acting for himself and for his minor brother. In effect, the objection asks the Court to try out the question which was raised before the order absolute for sale was passed and which has not been tried anywhere, namely, whether Mt. Rahas Kunwar was or was not the owner of the property mortgaged by her, and whether or not Basanti Lal and his brother now hold this property as the legal representatives of the estate of Mt. Rahas Kunwar or by an independent title. The learned Subordinate Judge held, obviously with some reluctance, that the question could not be tried now and must be treated as concluded against the judgment-debtors (objectors) by the terms of the decree. The learned District Judge on appeal has reversed this decision and has remanded the case to the Court of first instance for inquiry into the facts. The present appeal is against this order of remand.
4. We have been referred to various cases of which the strongest in favour of the appellant decree-holder is Jagar Nath Singh v. Sheo Ghulam Singh (1). This decision would be authority for the proposition that when the minors were impleadsd as the legal representatives of Mt. Rahas Kunwar they could not, in that proceeding, raise the question whethere the property in suit that is to say the property mortgaged by that lady, did or did not form part of her estate. They would have to submit the sale, but with full liberty to being a separate suit for the establishment of their independent title. The present case must be distinguished by reason of the proceedings which took place in the Court of first instance on the application of the minors for an order setting aside the ex parte decree. The result of that application was rightly or wrongly, an amendment of the decree, and the decree as amended must now be held binding on the parties. The decree as thus amended makes the property in suit liable for sale only if it be proved that Mt. Rahas Kunwar was the owner of it and that it is in the hands of Basanti Lal and his minor brother by inheritance from that lady. It may be that the Court which passed that decree itself failed to appreciate its legal consequences and gave expression to the opinion that the question of the title to this property was one which ought to be determined by a separate suit but the note made by that Court to the above effect, even supposing that it was incorporated in the decree, amounts to no more than this that execution of the decree will not be postponed unless such a suit is instituted and prosecuted on behalf of the minors. The minors formally complied with this direction by instituting a suit, but there is nothing in the direction itself which takes away their right to ask for an interpretation of the decree by the execution Court. I think in this instance the decree has rightly been interpreted by the lower appellate Court and that, according to its terms, it operates so as to throw upon the decree-holder the burden of proving in the execution department, that the property sought to be sold was part of the estate of Mt. Rahas Kunwar and is in the hands of the respondents as legal representatives of that lady. We therefore dismiss this appeal with costs including fees on the higher scale.
V.B/R.K
5. Appeal dismissed.