JUDGMENT

Dalal, J C - This first appeal, triable by a single Judge, was referred by me to a Bench of two Judges for decision. I shall confine myself entirely to the facts of the case. The matter in issue is full of difficulty and the different High Courts, and even the same High Court, have passed conflicting judgments. The necessity does not arise so I shall not presume to make any general observations on the subject.

2. To start with, it may be made clear that the Trial Court of the Subordinate Judge has failed to distinguish, as it ought, the ruling of this Court in Jadunath Singh v. Afzal Khanam A.I.R. 1921 Oudh 150. In that case the decree which was executed, was not a money decree but was one for the enforcement of a charge. The learned Judge who delivered the judgment has more than once pointed out this fact in his judgment. On page 193 he says:"It is also to be noticed about this suit that it was not a suit to recover money which was owing from Nawab Wala Qadar." Again on page 196 he has emphasized this fact: "Moreover, I have already referred to the nature of the claim which was made by Kandhaiya Lal and showed that it was not in its entirety a claim far money due from the deceased Wala Qadar." The suit before the lower Court was essentially one for the recovery of money due from a deceased debtor. Nor is the recent Bench judgment in Kaniz Abbas v. Bala Din A.I.R. 1925 Oudh 330, which was repeatedly quoted during arguments, relevant. One of the two judgments in that case was delivered by me. There also the decree to be executed was one for foreclosure.

3. The facts here are these: The debts were owing from one Munshi Nizam Ahmad. He left at his death two widows Mt. Batul-un-nisa and Mt. Hafiz-un-nisa and by Mt. Batul-un-nisa two minor grandsons of a predeceased son and by Mt. Hafiz-un-nisa two children, a son Sultan Ahmad and a daughter Kaniz Fatima. Mt. Batul-un-nisa took possession of the entire assets of M. Nizam Ahmad partly as heir, partly as guardian of her two minor grand-children on the basis of a deed of gift executed by Nizam Ahmad and partly in lieu of dower debt due to her. She also declared that Mt. Hafiz-un-nisa was not the married wife and that her children were not legitimate. While Mt. Batul-un-nisa was in sole possession Lachtni Narain a creditor of Nizam Ahmad sued her on foot of two pro-notes executed by him and obtained a decree on 12th July, 1917. Another decree was obtained by Raghubir and Raghunath on foot of three pro-notes on 31st July, 1917, against Mt. Batul-un-nisa and her two grandsons on confession of judgment. Both the decrees were assigned to one Ram Din who executed them and put to sale the village Husainganj and half of village Baragaon. Both these properties were purchased by one Anis Ahmad. Properties were sold, Baragaon on 28th June, 1918, for Rs. 1,100 and Hasainganj on 20th December, 1918, for Rs. 5,100. The decrees were for smaller amounts and the balance of the money was received by Mt. Batul-un-nisa. It may also be mentioned that in the plaints as required by the provisions of Order 8, Rule 5, the defendants were held to be liable to be called upon to answer the plaintiff's demand because she or they were legal representatives of the deceased debtor Nizam Ahmad. The decrees therefore in effect were passed, one against Mt. Batul-un-nisa and the other against her and her grandsons as legal representatives of the deceased debtor Nizam Ahmad (Plaint A-34).

4. Hafiz-un-nisa, Sultan Ahmad and Kaniz Fatima sued Mt. Batul-un-nisa and her grandsons for the recovery of their share of the property of Nizam Ahmad on 15th January, 1918. The litigation ended in this Court on 27th October, 1921, when a judgment was delivered by a Bench-Hafiz-un-nisa v. Jawahir Singh A.I.R. 1921 Oudh 209. In that litigation the legal marriage of Mt. Hafiz-un-nisa and the legitimacy of her children was denied. That defence failed but as to the rest the deed of gift was upheld as also Mt. Batul-un-nisa's right