Judgment creditor’s claim to execute by seizing property.

This second appeal is by defendants 1 and 2 against the decision of the Subordinate Judge of Kumbakonam affirming the decree granted in favour of the plaintiff by the District Munsiff setting side a claim order. The dispute-concerns the estate of one late Sivaramakrishna Ayyar and he became liable to pay costs to one Sivagangai Achi as per the decree in O. S. No. 40 of 1928, Sub-Court, Mayavaram. The present plaintiff obtained an assignment of that decree on 22nd October, 1931. Thereafter, the plaintiff applied to the Sub-Court, Mayavaram, for recognising the assignment in his favour and to transmit the decree for execution to the District Munsiff’s Court, Kumbakonam. By that time, the judgment-debtor died and his widow, Darmambal, was impleaded as the legal representative. The decree was transmitted to the District Munsiff’s Court, Kumbakonam, and the suit house was attached on 2nd April, 1942. Thereafter in E. A. No. 750 of 1942, the present defendants who are the sons of one Kuppalu Ammal, the sister-in-law of Sivaramakrishna Ayyar claimed that the property could not be attached as they obtained the property as a legacy under the will of the late Sivaramakrishna Ayyar dated 1st December, 1918 (Ex. D-1). Under this will, Dharmambal was given a life interest and it was alleged by the defendants that she had surrendered the property to Kuppalu Ammal in 1933. The District Munsiff who heard the claim petition held that the surrender was not proved and valid and that the decree-holder could proceed only against the life interest of Dharmambal in execution of the decree. There was an appeal against the order of the Sub-Court, Kumbakonam. Treating the order as one under section 47, Civil Procedure Code, the appeal was allowed and the matter was remanded to the District Munsiff’s Court on 16th August, 1943, for proper inquiry under section 47.. Against the order, of remand, the defendants preferred an appeal to the High Court and the High Court held on 25th August, 1944, that the matter does not fall under section 47. The plaintiff therefore instituted the suit to set aside the claim-order and claiming that he was entitled to attach not only the life interest but the property itself. It might be mentioned that Kuppalu Ammal died in 1940 during the pendency of the proceedings and the sons were sought to be impleaded as legal representatives. But it was held by the Court that they were mere legatees. The execution, however, was proceeded with on the basis of the prior attachment during the lifetime of Dharmambal, the heir-at-law of Sivaramakrishna Ayyar who would have taken the estate in the absence of a will.

In the suit, the defendants raised various pleas; but the principal and the only question which is now outstanding is whether the suit properties could be proceeded against in execution of the decree in O.S. No. 40 of 1926, without filing a separate suit against the defendants. Both the Courts held that execution-could proceed against the house in the hands of the defendants.

In this second appeal, the sole question for decision therefore is whether the-remedy of the decree-holder to realise his decree amount is only by way of a suit against the defendants or the execution could be proceeded with against the property in their hands.

In a connected proceeding between the same parties the question whether1 legatees of part of the estate who have taken possession of the property could be deemed to be legal representatives within the definition of section 2(11) of the Code of Civil Procedure came up before a Bench consisting of Horwill and Balakrishna Iyer, JJ., in Natesa Sastrigal v. Alamelu Achi1. That was a Letters Patent Appeal against the judgment of Govindarajachari, J., and the learned Judges, reversing the decision of Govindarajachari, J., held that they could not be deemed to be legal representatives within the meaning of section 2(11), Civil Procedure Code: It is on this decision that strong reliance was placed on b