Horwill, J.-A fairly simple question has been raised by the appellants, although: it has been argued with considerable vehemence by their learned advocate. A mortgage was executed by a mother and two sons; and mortgage decrees, preliminary and final, were passed against them. The hypotheca was brought to sale; but as it was insufficient to discharge the mortgage debt, an application was put in under rule 6 of Order 34 of the Civil Procedure Code for a personal decree against the two sons. Amongst other pleas, they stated that various payments had been made and that nothing remained due. Their objections were overruled and a personal decree was passed against the sons for the amount that the plaintiff claimed. In due course, execution was taken out; but by the time with which we are concerned both the sons had died and their legal representatives brought on record. The latter raised no objection to being brought on record as legal representatives; but when the decree was transmitted to another Court for execution against the family property of the two judgment-debtors and their legal representatives, objection was taken that no debt was due and that therefore the property was not liable for the discharge of a debt that had at no time been in existence. The lower Court held that an executing Court could not go into this question and so ordered execution to proceed. The legal representatives have appealed.

The general line of argument in the lower Court on behalf of the legal representatives seems to have been that their fathers-two of the three mortgagors-were not really debtors at all but mere sureties for their mother. That, however, would not mean that any decree passed against them would not be binding on their sons. Two other points have been put forward here. One is that since the«sons were sureties for their mother and then the mother, the principal debtor, was exonerated, the sons, who were merely sureties, would not be liable. This point was not raised in the Court below; and as it depends on the ascertainment of facts, we cannot allow it to be argued here. The second point is the only one that requires our consideration here. The contention now is that the Court that passed the personal decree determined wrongly the question whether their fathers had discharged the mortgage debt by various payments made by them. These allegations, as already stated, had been put forward by their fathers and had been negatived by the learned Judge. The appellants are therefore attacking the correctness of the decree. Since they were not parties to the decree (unless it can be said that as far as these questions are concerned, their fathers represented them), they are entitled to have this question re-agitated; but the question is whether the lower Court was right in holding that the question could be considered only in a separate suit filed by the legal representatives or whether that question can be gone into in execution proceedings.

We consider that the matter has been decided finally by two recent decisions of this High Court, the first being Lakshmadu v. Ramudu1, a decision of a Bench, and the other Hamidgani v. Ammasahib Ammal2, a decision of a Full Bench. In the former case, the father had executed a mortgage deed and a decree had been passed against him. The father died; and in execution the sons alleged that the debt was not a true one. This plea of the sons cut at the very root of the mortgage and therefore at the decree based upon it. If the father had mortgaged family property for no consideration at all, then it was clearly an alienation that was not binding on the sons: and so the decree also was not binding on them. The remedy sought to be adopted by the sons in that case was to file a separate suit; and it was urged by the decree-holder that was not the proper remedy and that the legal representatives should have raised whatever objections they had to the execution of the decree against the family property in execu