Legatees of part of the estate if leg representatives.

On the 3rd of March, 1933, one Sivakami Achi obtained an order for restitution against another, Sivaramakrishna Ayyar, in respect of a sum of Rs. 5,280 odd. On 29th August, 1933, Sivaramakrishna Ayyar died leaving a will, dated 1st December, 1918, by which he disposed of his properties in various ways. One of the properties dealt with under the will is a house in Kumbakonam. He gave a life estate in this house to his widow Dharmambal and the remainder to Kuppalu Ammal and her heirs. This Kuppalu Ammal, it may be mentioned, was a daughter of Dharmambal’s sister. In November, 1933, Dharmambal orally surrendered her life estate in the house in favour of Kuppalu Ammal. In 1940, Kuppalu died and thereafter her sons-they are the appellants before us-obtained possession of the house. Sivakami Achi died in September, 1938, and her interests devolved on her daughter Alamelu Achi. On 7th February, 1942, Alamelu Achi filed E.A. No. 196 of 1942 in the Court of the District Munsif of Mayavaram praying that the decree be transmitted for execution to the Court of the District Munsif, Kumbakonam. In that E. A. Dharmambal was shown as the second respondent in place of her deceased husband Sivaramakrishna Ayyar. She took the objection that the decree was barred by limitation. While this E. A. was pending, Alamelu Achi filed another application, which was numbered as E.A. No. 372 of 1942 in which she prayed that four other persons might be added as respondents 3 to 6. Of these four persons, two shown as respondents 3 and 4-are the brother’s sons of Sivaramakrishna Ayyar and the other two shown as respondents 5 and 6-are the sons of Kuppalu. By an order made on 18th September, 1942, E.A. No. 372 of 1942 was allowed and the four persons named therein were added as legal representatives of Sivaramakrishna Ayyar. On the same day E.A. No. 196 of 1942 was dismissed as barred by limitation. Against this order Alamelu Achi filed an appeal in A.S, No. 159 of 1942 on the file of the Sub-Court of Mayavaram. But that appeal was unsuccessful. She then came to this Court in C.M.S.A. No. 226 of 1943. That appeal was heard by Byers, J., who reversed the decision of the Courts below on the question of limitation and remanded the E.A. to the executing Court for further disposal according to law. Before Byers, J., an attempt was made to canvass the correctness of the finding given in E.A. No. 372 of 1942, to the effect that the applicants before us are the legal representatives of Sivaramakrishna Ayyar. On this matter the learned Judge stated as follows:

“The character of respondents 4 and 5 as legal representatives has been raised but this is not a question which arises in this appeal which is solely concerned with limitation. That question will have to be decided at the proper time in the lower Court.”

When the matter went back, the learned District Munsif at Mayavaram held that the appellants before us were not the legal representatives of Sivaramakrishna Ayyar. It was argued before him that by reason of the order in E.A. No. 372 of 1942, which had not been appealed from, it was not open to the appellants before us to canvass the correctness of the decision therein. The District Munsif overruled that objection on two grounds: One was that E.A. No. 372 of 1942 is in the nature of an interlocutory application in the main execution petition and the other was that the observations of Byers, J., left the question at large and that therefore, it was open to him to go into the matter. That decision was pronounced on 29th December, 1944. On appeal from the District Munsif of Mayavaram the learned Subordinate Judge took the same view, the result of which was that the efforts of Alamelu Achi to levy execution against the house in the possession of the appellants have failed. Alamelu Achi then came to this Court in C.M.S.A. No. 309 of 1945. Govindarajachari, J., who heard this second appeal concurred in the view of the Courts below that the decision in E.A. No. 372