Authored By : Richard Garth, Henry Thoby Princep

Richard Garth, C.J. and Henry Thoby Princep, J.

1. This was a rule obtained by Mr. Evans calling upon theclaimant in the execution proceedings in this case to show cause why the orderwhich had been made by the Deputy Commissioner, releasing certain property fromattachment (which property is now supposed to belong to the claimant) shouldnot be set aside, upon the ground that it was made with material irregularity.

2. The circumstances are these: The suit was brought, so farback as the year 1862, by the present plaintiff against the widow and the twominor sens of Shib Nath Lahiry for mesne profits, and that suit eventually camebefore the Privy Council, and the Privy Council made a decree in favour of theplaintiff and sent the case back, in order that the amount of the wasilatshould be ascertained.

3. Subsequently, in the year 1874, the widow professed toadopt, and is said to have adopted, the person whom I call the claimant. Theultimate decree that was obtained was obtained in the year 1880. Certainproperty was then attached as liable to satisfy the decree, and an applicationwas afterwards made by the claimant to have the property released fromattachment, upon the ground that he was in possession of it; or rather, thatthe widow was in possession of it for him, and that he was in point of fact, inpossession of it and not the widow; and the Deputy Commissioner made an orderthat the property should be released from attachment.

4. This is the order against which this rule was obtained;it is said that the Judge acted with material irregularity in making thatorder.

5. We cannot see that he acted with any irregularity. Hemight have made a mistake in making such an order; but it was for him todetermine whether the attachment should, or should not, be set aside, and underdifferent circumstances the order which he made might have been a proper one.But he probably was not aware of the difficulty which often attends thesolution of questions of this kind in point of law.

6. If the decree which was obtained was virtually a decreeagainst the husbands property, it would bind that property, whether the personsued was the widow, or the adopted son.

7. It is not for us to determine here what was the legaleffect of the decree; but so far as we can understand, the decree was in thefirst instance obtained against the widow as representing her husbands estate;and it also appears to have been obtained for a debt of the husband. Therefore,whether the widow now properly represents the estate, or the adopted sonproperly represents the estate, the estate would nevertheless be answerable forthis debt, supposing the decree to have been properly obtained.

8. This case would seem to come within the principle of acase decided some years ago in this Court, and which was afterwards approved ofby the Privy Council the case of Ishan Chunder Hitter v. Baksh Ali SoudagurMarsh. 614.

9. The circumstances of that case were these: A widow wasthere sued upon a bond, which had been given by her deceased husband, and at atime when she was not the heir of her husband; because the heir of the husbandwas her son, of whom she was only the guardian.

10. The suit, nevertheless, proceeded against the widow, anda decree was obtained against her; and under that decree the husbands propertywas sold.

11. The son then brought a suit to recover this property,upon the ground that at the time when the decree was obtained against thewidow, and the property sold, she did not properly represent the estate; but itwas held, that as in point of fact she was the registered owner of theproperty, and as the suit was brought against her in respect of her husbandsdebt, and as by the terms of the decree the estate was rendered liable for thedebt, the sale under the decree against her bound the property, although herson was no party to the suit. The principle of that decision has been adheredto in several other cases, and has been confirmed by the Privy Council. In thecase of the General Manager of Raj Durbhanga v. Maharajah Coomar Ramaput Singh14 M. I.A. 605 the suit had been brought by A against B for arrears of rent,and (B having died pending the suit) a decree was obtained by A against Bswidow, who had been made a defendant in his" stead. Under that decree anexecution was issued and "the interest of the widow" was sold underthat decree. The widow in fact did not represent the estate of her husband,because there was a son who was the husbands heir. The sale was subsequentlycalled in question by a creditor; and it was held by the Privy Council that,although the son was never made a party to the proceedings, and although thewidow did not properly represent the estate, still as the decree was obtainedagainst the estate the sale under the decree passed the husbands property. Inthat case their Lordships say: "The whole proceeding, if fairly looked at,amounts to this--that the estate of Gourpershad (the father) was sold underthat decree in execution for his debt, and that the interest of his widow, theregistered proprietrix and ostensible owner of the estate, and also theinterest of the son, if he had any interest, was bound by that decree. If thatbe so, the question arises, whether the respondent, the plaintiff in the suitbelow, has any ground upon which he can come in and impeach the sale. Itappears to their Lordships, that he can claim only what interest remained inGourpershad, and that substantially the proceedings would be a bar to any claimon the part of Hurpershad." And further on their Lordships say:"Their Lordships also desire to add that they are unable to see anysubstantial distinction between this case and that of Ishan Chunder Witter v.Baksh Ali Soudagur Marsh 614. They entirely agree in the principles expressedby Chief Justice Peacocok in that case, and think that they govern the presentcase."

12. There is also another authority in I.L.R. 7 Cal. 357, inwhich the cases on this subject are reviewed, and in which this same doctrinewas acted upon.

13. Therefore, if, as would appear to be the fact, thedecree in this case was a decree against the husbands estate, and it wasobtained against the widow as representing the husbands estate, it seems,according to the principle of these cases, that it would bind that estatewhether the widow or the adopted son was the proper representative.

14. Under these circumstances, apparently, this property wasattached, and the adopted son comes in and makes an application to the Court tohave the property released from attachment. Probably, if the Judge had beenaware of the authorities that I have quoted, instead of making the order whichhe did, he would have suggested, what I am about to suggest now, that theadopted son should be made a party to the proceedings (which would be, ofcourse, perfectly fair), but that the attachment should continue, unless theadopted son were able to show some good cause why the sale should not takeplace.

15. If the decree were against the estate, it would seem, sofar as we can see, to matter very little whether the widow or the adopted sonwas the proper representative. But it is quite right that the adopted sonshould be made a party to the proceedings, in order that, if there was any goodreason against the sale, he might be able to show it.

16. After the observations that we have made, the plaintiffwill see that his proper course will be to make an application to the Courtbelow, to have the adopted son made a party to the proceedings.

17. What we are asked to do now, is to set aside the ordermade by the Deputy Commissioner, releasing the property from attachment or tomake the adopted son a party to the proceedings. We have no power to do eitherone or the other. We have no materials before us, which would justify us insetting aside the order; nor have we any power in this Court to order that theadopted son be made a party to the proceedings. That, of course, must be thesubject of an application to the Court below.

18. If the adopted son is made a party to the proceedings,and another attachment is then issued, the order which has been made will be nobar to the execution.

19. We therefore think that the rule should be discharged,but, under the circumstances, we make no order as to costs.

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Sotish Chunder Lahiryvs. Nil Comul Lahiry and Ors.(10.09.1884 - CALHC)