Stanley, C.J:— This appeal arises out of a suit for a declaration that a share of certain zamindari property was not liable to be sold in execution of a decree obtained against a Hindu widow on foot of a mortgage executed by her. Musammat Raghubansa executed a mortgage in favor of the defendant Shiv Ghulam Singh and on foot of that mortgage Shiv Ghulam obtained a decree for sale on the 1st of April 1905. After this date Musammat Raghubansa died and thereupon the appellants, who claimed to be the reversioners of the deceased owner, the husband of Musammat Raghubansa, were brought upon the record as the representatives of Musammat Raghubansa, on an application under section 89 of the Transfer of Property Act for an order absolute. They filed an objection to the sale on the ground that the mortgage was executed by Musammat Raghubansa without legal necessity. Their objection was disallowed and thereupon the suit out of which this appeal has arisen was filed for a declaration that the property was not liable to be sold in execution of the mortgage decree. The court of first instance decreed their claim but upon appeal the lower appellate court reversed the decision of the court below and dismissed the plaintiff's suit on the ground that it was barred by the provisions of section 244 of the Code of Civil Procedure. The learned Advocate for the respondent admits that this section does not apply and that the learned District Judge was wrong in the view taken by him. The case is on all fours with that of Liladhar v. Chaturbhuj(1). In that case it was held by one of us and by Aikman, J., that when a decree for sale of specific mortgaged property is being executed, it is not open to persons made parties to the execution proceedings as legal representatives of the deceased judgment-debtor to contend in those proceedings that the mortgagor was not competent to make the mortgage and that the decree was one which ought not to have been passed. In view of this decision the learned District Judge was clearly wrong. We therefore allow the appeal, set aside the decree of the lower appellate court and as the appeal was decided upon a preliminary point, we remand the case under section 562 of the Code to that court with directions that it be reinstated in the file of pending appeals and be disposed of on the merits. The appellants will have the costs of this appeal including fees on the higher scale. All other costs will abide the event.
2. Appeal allowed.