The main legal point established is that the transferee of a deceased judgment-debtor, who acquired an interest in the property during the pendency of the suit, becomes a necessary party and is subject to the executability of the decree.

Reben, J.

1. This appeal arises out of an application for the execution of a decree for sale. The property sought to be sold is 3 annas 6 pies share in a house bearing holding no. 136 in Ward no. 2 in the Municipality of Gaya.

2. This house formerly belonged to one Gopalji who executed a mortgage bond in 1930 hypothecating this property. The mortgagee sued on the bond on 19th September 1936 (Suit No. 62 of 1936), and obtained a preliminary decree on 28th January 1938, The decree was made final on 4th August 1941. One Bajrang Sahay figures in the final decree as judgment-debtor no. 51. The respondents, who are transferees from the heirs of Bajrang Sahay, objected to the execution of the decree on the ground that Bajrang Sahay died on 21st May 1941 and that, as no substitution was made in his place, the decree cannot be executed against them. The objection has been sustained. Hence, the present appeal.

3. Before the Subordinate Judge there was a contest as to whether Bajrang Sahay died before the decree was made final. The correctness of the finding that he died has not been challenged before us. The only point pressed by Mr. Janak Kishore for the appellant is that Bajrang Sahay acquired his interest in the property during the pendency of the mortgage suit, that he was therefore not a necessary party in the mortgage suit and the failure to implead his legal representatives will not affect the executability of the decree, Mr. Raj Kishore Frasad resists this contention, asserting that Bajrang Sahays interest in the property commenced before the institution of the suit. He also raises a preliminary point, that the opposite party being strangers to the decree their objection was not under Sec. 47 but under Order 21, Rule 58, Civil P. C., and so no appeal lies.

4. As I consider that on the merits the appeal fails the preliminary point is of academical interest. Since it has been argued before us I would express my opinion. Had a decision been necessary, I would have rejected the contention relying on Jungli Lall V/s. Laddu Ram, 4 P. L. J. 240 : (A. i. R. (6) 1919 Pat. 430 F. B.). The facts in that case were similar to the one before us, A final decree was passed against a deceased judgment-debtor, and his legal representatives challenged its executability. The Courts below rejected the objection, holding that the execution Oourt could not go behind the decree. The decision was reversed by a Full Bench of this Court, which held that the dispute was one which arose between the parties within the meaning of Sec. 47 (vide pp. 247, 251 and 261 of the report).

5. The papers necessary for the decision of the question of fact involved in the remaining point have been filed before us. The relevant facts are as follows. Gopi Nath filed a partition suit and obtained from the Court an interim maintenance order against the karta Gopalji for a monthly allowance of Rs. 160. The suit was finally disposed of by compromise on 1st August 1931. Nevertheless, Gopinath took out execution of the order for payment of maintenance as if it was a decree. Gopalji appealed against the order permitting the execution to proceed (M. A. No. 46 of 1932). Certain property was sold in the course of the execution proceeding and Gopi Nath deposited Rs. 1082-6-0 under Order 21, Rule 89 for setting aside the sale. Under the order of the High Court in M. A. no. 46, Gopalji withdrew this money after furnishing security for its re-payment in the event of the appeal being decided against him. The security was given on 31st May, 1932, and consisted of the sixteen annas interest in the house in question. The appeal was ultimately decided in favour of Gopi Nath on 5th September 1933, and the amount which Gopi Nath was entitled to recover (including the amount deposited by him) was assessed at Rs. 1933. On 16th August 1936, Gopi Nath transferred his dues under the High Court order to Bajrang Sahay by a registered document. Bajrang Sahay executed this order in Execution Cas