A decree-holder must apply to the Court which passed the decree for the substitution of the legal heirs of a deceased judgment debtor before executing the decree against them.

Jamuar, J.

1. The miscellaneous appeal and the civil revision application have been heard together, as they arise out of the same order.

2. I shall deal with the miscellaneous appeal first. The appeal arises out of an application filed in the Court below under S. 47, Civil P. C. object- ing to the sale of certain lots mentioned in the talika in the execution case by one Prasadi Mahto who was added in column No. 9 of the application for execution at the instance of the decree-holder. The facts necessary for the decision of this appeal are these: The decree-holder had obtained a deoree on 18-2-1946, from the Court of the Munsif of Bihar against one Mt. Chamni on the basis of a handnote. This decree was transferred to the Court of the Munsif of Barh on 10-8.1948, for execution. On 7-9-1948, the decree-holder applied to the executing Court in the prescribed manner for the execution of the decree against Mt. Phulia and one Ram Charitar Mahto, as Mt. Chamni had died. Subsequently, the name of the appellant, Prasadi Mahto, was added as a judgment-debtor by an order dated 15-12-1948, on an application of the decree-holder, on the ground that, on the death of Mt. Chamni it was necessary to mention the name of Prasadi Mahton in column 9 of the execution petition. Thereafter, on 27-1-1949 Prasadi Mahto, having received notice, filed an objection under s. 47, Civil P. C. to the execution of the decree against him on certain, grounds mentioned therein, one of the grounds being that the execution case itself was not maintainable. The learned Munsif of Barh observed that the. most important and the foremost question for the purpose of determining the maintainability of the, execution case was as to who was the legal heir who represented the estata after the death of Mt.Chamni, and who was in possession of the properties including the properties under talika The learned Munsif stated that the decision called for the determination of the question of legal heir, and that he, being an executing Court could not legally decide the point, as sueh matters were within the province of the the Court which had transferred the decree to him. As the decree holder had not obtained any decision from that Court on this point, the learned Munsif held thafe the execution case was not maintainable.

3. As against that decision, the decree-holder appealed to the Court of the District Judge, and the appeal was heard by an Additional Distriot Judge. He reversed the decision of the learned Munsif, and held that the application for execution was maintainable. But he remand ei the case to the learned Munsif for the determination of the question whether the debt in respect whereof the deoree in execution was passed had been incurred for legal neoessity and whether as such the deoree was binding on the estate of Punai Mahto who was the husband of Mt. Chamni

4. On appeal to this Court, it was arguad that the order passed by the learned Additional District Judge was erroneous, as the original order of the learned Munsif of Barh dismissing the execution case as not maintainable was correct for the reason that the decree-holder should have applied to the Court which had passed the decree for the substitution of the legal heiis of Mt. Chamni

5. Sub-s. (1) of S. 50-, Civil P. C. provides a» follows:

"Where a judgment debtor dies before the dacree has been fully satisfied, the holder of the decree may apply totile Court which passed it to execute the sarns against the legal representatives of the deceased"

I have no doubt that this was the objection which was taken by Prasadi Mahto before the Mansif at Barh, as will-appear from the order of the learned Munsif who heard the matter. 0d behalf of the respondent, it was contended that such an objecetion was not mentioned in specific terms in the petition of objection filed under S. 47, Civil P. 0., by Prasadi Mahto, though an objection had been taken in respect of the maintainability of the execution. It is true that the o