Alfred Henry Lionel Leach, C.J.

1. The question which arises in this appeal is whether a person who has been brought into Court in execution proceedings merely as the legal representative of the judgment-debtor is compelled to have his own claims to the property in suit decided in the execution proceedings or whether he can establish his rights by a separate suit.

2. On the 24th November, 1927 one Habib Muhammad Maracair agreed to sell certain wet lands to one Vaidhialinga Mudaliar, who was the fourth defendant in the suit out of which this appeal arises and is now represented by the third and fourth respondents. the vendor failed to execute a conveyance and the purchaser instituted a suit in the District Court of Negapatam for a decree for specific performance. The suit was subsequently transferred to the Subordinate Judges Court for hearing. The appellant was made a party to that suit because she claimed a share (7/72) in it. She was made a party on her own application, which was opposed by the plaintiff. An issue was then framed on the question whether she was a necessary party to the suit and it was decided that she was not. Consequently her name Was struck off the record. On the 8th August, 1931 a decree for specific performance was granted to the plaintiff, but before it could be executed the vendor died. The result was that the appellant was made a party as his legal representative. The application for execution then proceeded and eventually the Court executed a conveyance in favour of the purchaser.

3. In the course of the execution proceedings, but before the conveyance was signed the appellant instituted in the Court of the District Munsif of Tirutturaipundi the present suit. The purchaser challenged her right to institute it. He maintained that her claim should have been decided in the execution proceedings and it was now too late to raise it. The District Munsif accepted this argument and dismissed the suit. His decision was concurred in by the Subordinate Judge of Tiruvarur. The appellant then appealed to this Court and the second appeal came before Abdur Rahman, J., who has made the reference which this Full Bench is now called upon to consider.

4. The reference became necessary because there are conflicting decisions of this Court on the question involved. The first case to which our attention has been called is that of Kuriyali v. Mayan I.L.R.(1883) Mad. 255. That appeal arose out of a mortgage suit and in execution proceedings the legal representative of the mortgagor claimed an interest in the mortgaged property. The claim was investigated by the District Munsif in execution proceedings, but on appeal to the District Court it was held that the District Munsif had no power to decide the legal representatives title and that the proper course was for the decree-holder to attach the property and for the legal representative to make a claim. This course was adopted and resulted in the legal representatives claim being rejected. Thereupon he brought a suit to cancel the sales which had taken place in the course of the execution of the decree and it was held that the suit did not lie. The Court did not, however, consider a very important question, namely, whether it is open to a legal representative with a claim of his own to challenge in execution proceedings the validity of a mortgage decree which has been, passed against the person he is representing.

5. A decision running counter to the judgment in Kuriyali v. Mayan I.L.R.(1883) Mad. 255 was given by another Bench of this Court in Kumaretta Servaigaran v. Sabapathy Chettiar (1906)16MLJ545 . In that case the appellant was the defendant in a mortgage suit and in an application for a final order for sale which was made in execution proceedings the Civil Procedure Code of 1882 then being in force) the appellant sought to stop the sale on the ground that the decree which had been passed against him was not binding on the property; because since the passing of the