Horwill, J - (1.)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.
(2.)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.
(3.)We consider that the matter has been decided finally by two recent decisions of this High Court, the first being Lakshmadu V/s. Ramudu I.L.R. (1940) Mad. 123, a decision of a Bench, and the other Hamidgani V/s. Ammasahib Ammal , 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 execution. It appears that they put forward their claims in the final decree proceedings; but were not allowed to argue the point there; because, so the learned trial judge held, the consideration of that question was foreign to a mortgage suit and that the proper time for them to object was when execution was taken against the property which they claimed was theirs. The learned Judges were inclined to think that since the decree-holder had objected to the legal representatives raising the question in the final decree proceedings, it would not be open to him to resist the putting forward of the claim in a separate suit, for to do so would be to blow hot and cold. The principal question however considered by the learned Judges was whether this objection could properly be said to arise in the execution, discharge, or satisfaction of the decree; and they held that it could not, because the legal representatives were attacking the decree itself. Abdur Rahman, J., who delivered the judgment of the Bench, said: If, on the other hand, these are being raised by a third party and are of a nature which go to the root of the matter and attack the decree itself, they could not be gone into in execution proceedings for the simple reason that an executing Court cannot be asked to go behind the decree ...If persons who were not parties to the suit (the sons) and who have been already found not to be represented by their father, desire to challenge the decree or the mortgage on the basis of which the decree was passed, they could not do so in execution proceedings.