JUDGMENT
A preliminary objection has been taken that no appeal lies against the order of the Subordinate Judge.
In Original Suit No. 31 of 1900 the appellants obtained a decree for the sale of certain mortgaged lands which had belonged to one Somasundara Mudali deceased and an order for the recovery of any sum not realized by the sale from any other property forming part of his estate. The defendants were an alleged adopted son of Somasundara Mudali and Visalatchi and Bapu, the two widows of Somasundara Mudali's father, who, if the adoption failed, would represent the estate. One of these widows, Bapu alone contested the suit but after a time she ceased to continue her contest. An issue as to whether the debt was payable out of Somasundara Mudali's estate was raised and decided in the appellants' favour. Visalatchi died in June 1903. On the 22nd October 1903 part of the mortgaged property was sold and purchased by the appellants themselves. They applied for an order for delivery of possession to them. The third respondent objected to the delivery on the ground that he was in possession of the property in his own right. His claim was two-fold. His first contention was that Somasundara Mudali's estate had vested, on his widow's death before the suit, in Visalatchi only and that after the latter ho, as the nearest male reversioner, became entitled to Somasundara's estate, Bapu having no interest in the property at all, inasmuch as Somasundara had, as alleged by this respondent, been adopted by his father in conjunction with Visalatchi alone and Bapu consequently occupied the position of but a step mother of Somasundara.
His second contention rested upon a release deed executed by Bapu to him on the 17th October 1903 the real effect of which would be to vest in him the interest of Bapu in Somasundara's estate if, according to the case of the appellants, Somasundara's adoption by his father was in conjunction with both his wives. The Subordinate Judge finds and we think rightly that Bapu let the third respondent into possession.
If, as contended by the third respondent, the inheritance passed on Visalatchi's death to him he would be the person entitled to represent the estate.
In this view a question such as the present relating to execution will have to be dealt with under section 244, Civil Procedure Code, and an appeal will lie against the order passed in the matter. If, on the other hand, Bapu, as the surviving adoptive mother, be entitled to the inheritance for her life the rethi respondent as a person relying on the release by her executed after the mortgage decree in favour of the appellants against Bapu must be held to be a representative of one of the parties to the decree and the same result will follow.
Our attention has been drawn to Kasinatha Ayyar v. Uthumansa Rowthan(1). The conclusion of Moore, J., in that case with reference to the appeal therein in so far as it related to the fourth respondent, was that the case of obstruction by a purchaser from a mortgagor after a decree had been passed against the latter to the execution of the decree by delivery of the property to the decree-holder and purchaser, would fall under section 335, Civil Procedure Code Bhashyam Aiyangar, J., who took part in the case, makes no reference to the point. The judgment of Mr. Justice Moore contains no reasons for not treating the purchaser as a representative of the mortgagor within the meaning of section 244, Civil Procedure Code, in accordance with the decisions on the point in this and other High Courts. We are therefore unable to regard that case as compelling us to hold that the third respondent is not a representative and we accordingly overrule the preliminary objection.