Lord Simonds.-

In this appeal, which is brought from a judgment and order of the High Court of Judicature at Madras setting aside a judgment and order of the Court of the Subordinate Judge of Cochin, the appellant claims that he is entitled to proceed in execution against certain properties of the respondents under circumstances which must be somewhat fully set out.

[2] The respondents are Mappilla Mohammedans of Malbar in the Province of Madras and are governed by the Marumakkathayam law under which descent is traced in the female line. Their joint family like that of the local Hindus is known as a tarwad and the branches of the tarwad as tavazhi. Formerly the members of a tarwad had only a right of maintenance and could not enforce a partition of the family properties, but under the Mappilla Marumakkattayam Act, 1938 (Madras Act No. XVII [17] of 1939), they can obtain a share of the properties by partition or alternatively have the tarwad properties registered as impartible.

[3] The effect of the Act upon the property of a tavazhi is a question of difficulty upon which for reasons that will appear it is unnecessary for their Lordships to express any opinion.

[4] On 24th February 1930, one Subbayya Ayyar in a suit brought in the Court of the Subordinate Judge of Cochin against the respondents and one Kunhammad Kutti Haji since deceased obtained a decree against them for Rs. 12,436 with interest and costs. In the course of the suit Subbayya Ayyar obtained an order for attachment of the immovable properties of the respondents, which notwithstanding their objection was subsequently confirmed by the Subordinate Judge.

[5] Thereupon certain members of the family of the respondents put in petitions in the suit praying that the attachment might be raised on the ground that the respondents had no saleable rights in the attached properties. Upon these petitions, they obtained no relief but were (in the terms of the note which is before their Lordships) "referred to an original suit." Accordingly the respondents with other members of their family brought a fresh suit against Subbyya Ayyar in the same Court claiming that the properties in question were not liable to be attached or sold in execution of the decree in the first suit. The straight issue was thus raised, the defendant Subbayya Ayyar contending that the properties belonged absolutely to the respondents, while the plaintiffs, who included the present respondents, contended that they belonged to a tavazhi, of which the respondents and others were members, and were not liable to be attached.

[6] In this suit the contention of the respondents and their co-plaintiffs was upheld by the Subordinate Judge of Cochin and his decision was affirmed by the judgment, dated 2nd March 1938, of the High Court at Madras. Thus there was a clear decision in a suit to which Subbayya Ayyar, through whom, as will appear, the appellant claims, and the respondents were parties, that the properties in question were not liable to attachment.

[7] On 25th September 1919 (1939?), under circumstances which have not been made clear but, as is not to be disputed, for valuable consideration, the appellant obtained an assignment of the decree in the original suit from Subbayya Ayyar, and, having done so, on 26th January 1940, filed an execution petition in the Court of the Subordinate Judge of Cochin for recognition of the assignment of the decree in his favour and for attachment of the rents and profits of the same immovable properties belonging, as he alleged, to the respondents. To this they objected, contending that the petition was barred by the judgment of the High Court of Madras of 2nd March 1938. It had there been decided, they said, that the properties belonged to a certain tavazhi and could not be attached, and it followed that the rents and profits of the same properties could not be attached. Upon this petition the Subordinate Judge on 16th September 1940, made an order recognising the assignment of the