1. This is an appeal by the decree-holders against an orderin execution proceedings, and illustrates, what has been often stated before,that the difficulties of a litigant begin when he has obtained his decree. Onthe 16th September 1911 the appellants instituted a suit against one MahimChandra Chakrabarti for recovery of a large sum of money. During the pendencyof the suit, the defendant died on the 27th November 1911. On the applicationof the plaintiffs, the three sons of the deceased, who were ostensibly hisheirs and representatives, were brought on the record in his place. They didnot object to the adoption of this course. The case was tried on the merits,and on the 8th May 1912 a decree was made against the persons supposed to bethe heirs and representatives of the original debtor. The decree directed asusual that the judgment-debt be realised out of the estate of the deceased inthe hands of the substituted defendants. On the 9th June 1913, thedecree-holders applied for execution of their decree, and notices were dulyissued. Thereupon the wives of the three sons of the deceased intervened andstated that execution could not proceed as Mohim, Chandra, their father-in-law,had made a testamentary disposition of his properties on the 1st May 1911,whereby they had been appointed executrices. They alleged that the Will hadbeen duly proved in 1913, but that the Probate had not been actually issued asthe question of valuation of estate was still under investigation by theCollector. The Court held that the decree had been obtained against persons whowere not the true representatives of the deceased debtor and could not beexecuted against the estate in the hands of the executrices. The applicationfor execution was consequently dismissed. The decree holders appealed to theDistrict Judge, but the appeal has been dismissed as incompetent. Thedecree-holders have now appealed to this Court and have contended that theappeal should have been heard on the merits by the District Judge and executionallowed against the estate in the hands of the executrices. It is plain thatthe answer to the question whether the order of the primary Court wasappealable or not, depends upon the question, whether the decree is capable ofexecution against the estate in the hands of the executrices; if the latter arerepresentatives of the parties to the suit, the order falls within the scope ofSection 47 of the Code and is appealable as a decree; if they cannot be deemedsuch representatives, the order is not covered by that section and cannot bechallenged by way of appeal.

2. We may at the outset deal with a narrow ground assignedby the respondents in support of the view that the executrices are notrepresentatives of the parties to the suit; they have argued that they are therepresentatives of the original debtor but are in no sense representatives ofthe sons of the debtor, who were brought on the record of the suit as hissuccessors-in-interest. This contention is based on a limited view of themeaning of the term representative. The sons of the deceased defendant werebrought on the record as his representatives-in-interest; they wereunquestionably his representatives to all appearances; the Will had not beenproved at that time, nor were the plaintiffs ever; aware of its existence.Consequently, they were the only persons who could be brought on the record assuccessors-in-interest of the deceased. Since then the Will has been proved,and the Probate, by a legal fiction, takes effect retrospectively from the dateof the death of the testator. Consequently the estate which was then ostensiblyrepresented by the sons and heirs of the deceased, is now represented by theexecutrices. Without undue stretch of language, the view may, in thesecircumstances, be maintained that the executrices are representatives of theparties to the suit who were themselves before the Court in a representativecharacter. Reference may in this connection be made to the decision in Premmoyiv. Preonath Dhur 28 C. 636, where an analogous question arose forconsideration. There a Hindu widow had instituted a suit as representative ofthe estate of her husband; on her death during the pendency of the suit, thereversionary heirs were brought on the record. It was contended that they werenot her representatives as they derived title not from her, but from herhusband. This contention was negatived, and it was ruled that as the widow andthe reversioners successively represented the same interest, the reversionersmight be treated as representatives of the widow. We are, therefore, notprepared to hold that the order of the primary Court is beyond the scope ofSection 47, merely because the executrices cannot, in popular language, becalled representatives of the deceased debtor. Whether they can be deemedrepresentatives of parties to the suit or not, depends, in our opinion, uponthe answer to a more fundamental question.

3. It was explained by a Full Bench of the Court in IshanChunder Sirkar v. Beni Madhub Sirhar 24 C. 62 : 1 C.W.N. 36 that the termrepresentative includes not merely a legal representative such as heir,executor or administrator, but also a representative-in-interest, that is, arepresentative of the decree-holder or judgment-debtor who, so far as suchinterest is concerned, is bound by the decree: Gidzari Lal v. Madho Ram 26 A.447 (F.B.) : (1904) A.W.N. 61 : I.A.L.J. 65. We are thus brought back to whatmust, be deemed the root of the matter in this case, namely are the executricesbound by the decree. We are of opinion that the decree as it stands cannot beexecuted against the estate in their hands and that the remedy of thedecree-holders is, either, to have the decree vacated, the suit restored, theexecutrices brought on the record and a new decree made against them, or, toinstitutes suit on the judgment and to obtain a decree thereon against theexecutrices. This is clear, from the decision in Ashi Bhushan Dasi v. PelaramMandal 21 Ind. Cas. 519 [LQ/CalHC/1913/295] : 18 C.L.J. 362 : 18 C.W.N. 173. There a decree hadbeen obtained for mesne profits against an alleged adopted minor son as therepresentative of the wrong-doer. The adoption was subsequently declaredinvalid, whereupon the decree-holder sought to proceed in execution against thereal representative. It was ruled that the decree-holder could not proceedagainst the judgment-debtor on the record as he had not received any assets ofthe wrong-doer; nor could he ask the Court to substitute the name of the realrepresentative in the decree, because the result would be really a new decreein his favour against such representative. At the same time, it is clear that asuit can be brought against the executrices on the basis of the judgmentalready obtained.

4. Reference may be made to the decision of Markby, J., inProsunnre Chunder Bhuttacharjee v. Kristo Chytunno Pal 4 C. 342 : 3 C.L.R. 154where, under circumstances somewhat similar to those of the present case, itwas held that if the decree could not be executed against the estate in thehands of the executor, it was at any rate sufficient to enable the plaintiff tobring a suit against the executor to have the decree satisfied. We are not nowconcerned with the question of the binding character of orders made or salesheld in execution of a decree obtained against persons who, as subsequentevents show, are either not the proper representatives of the deceaseddefendant or constitute only some of his representatives. There has been somedivergence of judicial opinion upon this matter, as is clear from anexamination of the decisions in General Manager of the Raj Durbhnuga. v.Ramaput Singh 14 M.I.A. 605 : 10 B.L.R. 294 : 17 W.R. 459 : 2 S.P.C. 7 575 : 3.S.P.C.J. 117 : 20 E.R. 912; Assamathem Nessa Bibee v. Lutchmeeput Singh 4 C. 142: C.L.R. 223 : 1 S. L.R. 219; Chuni Lal v. Osmond Beeby 30 C. 1044; BaswantapaShidapa v. Ranu 9 B. 86; Janaki v. Dhanu Lal 14 M. 454; Chathakelan v. GovindaKarumiar 17 M. 186 : 4 M.L.J. 59; Kadir Mohideen Marakkayar v. MuthukrishnaAyyar 26 M. 230 : 12 M.L.J. 368 and Ramasawmi Chettiar v. Oppilamani Chetti 4I. C. 1059 : 33 M. 6 : 6 M.L.T. 269 : 19 M.L.T. 671 on the one hand, andSitanath Das v. Roy Luchmiput Singh 11 C.L.R. 268; Harish Chunder Biswas v.Puri Das Das 6 Ind. Cas. 627 [LQ/CalHC/1910/276] : 12 C.L.J. 561 : 14 C.W.N. 1041 and Lal Behary v.Nagendra Nath 16 Ind. Cas. 690 [LQ/CalHC/1912/255] : 22 C.L.J. 266 on other hand. These decisionsdo not directly touch the question in controversy now before us, viz., whetherthe decree obtained against the ostensible representatives should be allowed tobe executed against the estate in the hands of the executrices though objectionis taken before execution has been issued, or whether the decree-holders shouldbe limited to their remedy by way of a decree against the executrices, eitherby re-opening the suit or by instituting a fresh suit on the judgmentpreviously obtained. The decision in Rameshwar Singh v. Janeshuari Babooshin 21Ind. Cas. 397 : 18 C.W.N. 129 : 19 C.L.J. 19 which bears on the subject, isclearly distinguishable, in view of the special circumstances under which thedecree in the first suit was obtained. There cannot, we think, be a reasonabledoubt that a suit would lie on the judgment; this, indeed, is to some extentborne out by Article 122 of the Schedule to the Indian Limitation Act, whichshows that the Legislature contemplated the possibility of suits upon judgmentsobtained in British India, though we are not unmindful that the Limitation Actcannot give rise to a cause of action where none exists independently of theprovisions thereof; as Sir Richard Couch observed in Hari Nath v. Mothuramohan20 I.A. 183 : 21 C. 8 the intention of the law of limitation is not to give aright where there is not one, but to interpose a bar after a certain period toa suit to enforce an existing right: Khunni Lal v. Kunwar Gobind Krishna Narain10 I. C. 477 : 15 C.W.N. 545 : 38 I.A. 87 : 8 A.L.J. 552 : 13 L.R. Bom. 427 :13 C.L.J. 575 : 10 M.L.T. 25 : 21 M.L.J. 645 : 33 A. 356 : (1911) 1 M.W.N. 432.It is not necessary, for our present purpose, to enter upon a discussion of thecircumstances under which a suit lies upon a judgment in British India. A nexamination of the cases, specially those of Sondes v. Jomir Shaikh 9 M.W.N.432; Attermoney Dossee v. Hurry Doss Dutt 7 C. 94 : 9 C.L.R. 357 : 4 S. L.R.192; Golam Arab V. Curreembux Shaikjee 5 C. 294 : 4 C.L.R. 477; Bhavanishankarv. Pursadri 6 B. 292; Merwanji Nowroji v. Achabai 8 B. 1; Ramayya v.Venkataratnam 17 M. 122 : 4 M.L.J. 52; Annoda Prasad v. Nobo Kissore Roy: 9 C.W.N. 952 : 33 C. 560; Mallesam Naidu v. Jugala Panda 23M. 292; Periasami Mudaliar v. Seetharama Chettiar 27 M. 243 (F.B.) : 14M.L.J.Q. 84 shows that there is considerable divergence of judicial opinionupon the subject, and that the Courts are by no means agreed as to thecircumstances Under which a suit may be instituted in this country on what maybe called a domestic as distinguished from a foreign judgment. It is well knownthat in England there has been divergence of judicial opinion on the subject[Freeman on Judgments, Chapter XVII; Black or Judgments, Chapter XXIV], and itis only in recent years that the principle has been adopted that although anaction lies on judgment which finally establishes a debt, whether the judgmentbe English or foreign, it is an abuse of the process of the Court to bring anaction upon an English judgment if it can be enforced in some other way:Pritchett v. English and Colonial Syndicate (1899) 2 Q.B. 428 : 86 I.J.Q.B. 801: 47 W.R. 577 : 81 L.T. 206; Grant v. Easton (1883) 13 Q.B.D. 302 : 53 L.J.Q.B.68 : 49 L.T. 645 : 32 W.R. 239; Nouvion v. Freeman (1889) 15 A. C. 1 : 59 L.J.Ch. 337 : 62 L.T. 189 : 38 W.R. 581; Pemberton v. Hughes (1899) 1 Ch. 781 : 68L.J. Ch. 281 : 47 W.R. 354 : 80 L.T. 369 : 15 T.L.R. 211; Hodsoll v. Baxter(1858) E1. B1. & E1. 884 : 28 L.J.B. 61 : 4 Jur. (N.S.) 556 : 6 W.R. 686 :120 E.R. 739 : 113 R.R. 929. The principle on which an action is allowed to bemaintained on a judgment was concisely explained by Baron Parke in Williams v. Jones(1845) 13 M. & W. 628 : 57 R.R. 767 : 2 D. & L. 680 : 14 L.J. Ex. 145.The principle is, that, where a Court of competent jurisdiction has adjudicateda certain sum to be due from one person to another, a legal obligation arisesto pay that sum, on which an action of debt to enforce the judgment may bemaintained." No mischief can result from the acceptance of this principle,if it is adopted subject to the qualification recognised in modern English law,viz., that an action is permissible only where the judgment cannot be enforced,in some other way; and beyond this, it is not necessary for our purpose toproceed.

5. We hold accordingly that the decree-holders are notentitled to execute their decree against the estate in the hands of theexecutrices. The appeal is consequently dismissed, but there will be no orderfor costs.

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Kali Charan Nath and Ors. vs. Sukhada Sundari Debi and Ors.(02.08.1915 - CALHC)