JUDGMENT

Brett, J. - This is one of two analogous appeals arising out of the proceedings in two analogous execution cases which were disposed of by the same order on 18th November 1901. The analogous appeal No. 48 of 1902 came on for hearing before a Division Bench of this Court consisting of Prinsep and Stephen, JJ., and was dismissed by them with costs on the 18th March 1903 [See Dinamoni Chaudhurani v. Elahudad Khan 7 C. W. N. 678 (1903)]. For some unexplained reason the paper-book in this appeal was not then ready, though it consists of 5 pages only and though for the purposes of hearing the appeal it is incomplete as the full judgment with the reasons for the order appealed against appear in the paper-book of the analogous appeal No. 48 of 1901. At all events this appeal was not then brought on for hearing before that Division Bench but it has been brought on the file of this Bench for hearing about a year afterwards. The course which has been adopted is a departure from the usual practice of the Court and is much to be deprecated. This appeal has been argued before us practically as an appeal from the decision of the previous Division Bench and we are invited to differ from the decision of that Bench and to refer the appeal for hearing to a Full Bench. It is an attempt to introduce a very undesirable precedent. The application, on which the order was passed against which this appeal has been preferred, was one made under sec. 234 of the CPC for the substitution of the present Appellant, Dinamoni Chaudhurani, the daughter-in-law of Jahnabi Chaudhurani as judgment-debtor in place of Jahnabi Chaudhurani, the original judgment-debtor who had died before the decree had been fully executed, and for execution of the decree against Dinamoni Chaudhurani.

2. The decree of which execution was sought was one for obtaining possession on declaration of title of land and for mesne profits in respect thereof and for costs amounting to over Rs. 3,000. Execution was sought for the recovery of the costs by the attachment and sale of a lodging house valued at Rs. 1,000.

3. The application was objected to on the ground that Dinamoni Chaudhurani was not the "legal representative" of her mother-in-law Jahnabi Chaudhurani.

4. To explain the position it is necessary to give a small portion of the family history. Jahnabi Chaudhurani was the widow of Goloke Nath Rai who before his death executed an anumatipatra in her favour. By this document he appears to have given her power to adopt a son and at the same time to have provided that she should hold and manage the property left by him during her lifetime. She afterwards adopted Baikant Nath Rai. When the adopted son grew up, he, as is not unusual, quarelled with his adaptive mother over the possession of the property and entered into litigation with her. Wiser counsels, however, afterwards prevailed and on the 22nd Bhadra 1272, Baikant Nath executed in favour of Jahnabi Chaudhurani an ekrarnama. This document after reciting that under the term of the anumatipatra Jahnabi Chaudhurani had been holding, managing, and enjoying the properties left by Goloke Nath Rai, after substituting her name for his as owner of the property according to the intention of the anumatipatra, and that he (Baikant Nath) had acted illegally against her contrary to the intention of his father, in trying to deprive her of the properties left by his father, goes on to say, "Since my father's death you have managed and protected the zamindari and improved the same and have been still doing so ; and there are provisions in the anumatipatra executed by my father authorizing you to manage and protect all the zamindari and other properties left by him even after you have adopted a son." It then provides "that you like my paternal grandmother Raj Mohini Chaudhurani will possess and enjoy during your lifetime on payment of Government Revenue without any power to transfer by sale or gift all the following properties, &c," (a list of the