Judgment B.P.Sinha, J. 1. This is an appeal from the decision of the learned Additional Dist. J. of Muzaffarpur reversing that of the Subordinate Judge of the same place in an execution proceeding. 2. In order to appreciate the points in controversy between the parties, it is necessary to state the following facts. The D. H.-resp. obtained a decree for money against Ghanshyam-Lal in the Munsifs Court at Mahaban in the district of Agra. The decretal amount is over four thousand rupees. The D. H. got the decree transferred to the Muzaffarpur Court with a view to executing the same in that Court by attachment & sale of a proprietary interest in village Gaibipur Ranjitpur, tauzi No 19770. During the pendency of the execution proceedings, the J. D., Ghanshyam, died. One of the points in controversy between the parties in the Court below was as to whether he died on 20-11-1944, as alleged by the D. H., or on 22-8-1944, as alleged by the J. Ds alleged legal representative. That controversy is now closed, as both the Courts below have found that the D. Hs allegations in this respect are correct. On the death of the J. D., the sons of Ghanshyam & his brothers sons, one of whom, Damodar Lal. son of Dwarka Nath, who is the objector, appellant in this Court, were brought on the record by the transferee Court. 3. The objections raised by the appellant in the executing Court were (1) that the transferee Court had no jurisdiction to make an order for substitution in place of the deceased J. D.; (2) that the property sought to be proceeded against in execution of the decree by the D. H. was the property of the objector-appellant, to the extent of twelve annas & the remaining four annas belonged to Madho Lal, the son of Shyam Sunder deceased, another brother of Ghanshyam, the J. D.; & (3) that the execution was barred by limitation on the ground that the J. D. had died on 22-8-1944, that is to say, before the application for transfer of the decree was made in the Court which passed the decree. 4. 4. The executing Court allowed the objection to the execution of the decree, holding that the order for substitution was irregularly made by the Muzaffarpur Court but that the order was not without jurisdiction; that the application was not barred by limitation, as it had not been proved by the objector that the J. D. had died before the appln. for transfer of the decree had been made in the Court which passed the decree; but that the J, D. or his sons have no interest in the property sought to be sold, inasmuch as the four annas interest of the J. D. in the property had been sold to the objector. On appeal by the D, H., the learned Additional Dist. J. allowed the same, holding that the sale of the four annas interest of Ghanshyam in the property in question was not effective to transfer the title of Ghanshyam to the objector. In that view of the matter, he held that the four sons of Ghanshyam should be proceeded against in the execution proceedings, & their four annas interest in the property sold in satisfaction of the decree. Accordingly, he directed the names of Damodar,. the appellant, & Madho to be struck out from the category of J. Ds. In effect, therefore, the learned Additional Dist. J. allowed the objection in part & disallowed it to the extent that four annas, out of the sixteen annas interest, were ordered to be sold as being the property of Ghanshyams sons who were the only legal representatives of the J. D. liable under the decree. 5. In effect, therefore, the learned Additional Dist. J. allowed the objection in part & disallowed it to the extent that four annas, out of the sixteen annas interest, were ordered to be sold as being the property of Ghanshyams sons who were the only legal representatives of the J. D. liable under the decree. 5. In this second appeal, it has been argued by the learned counsel for the appellant, Damodar, that the order substituting the so-called heirs of the deceased J. D. could not have been passed by the transferee Ct., & could have been legally passed only by the Court which passed the decree; that this was not a mere irregularity but an illegality which affected the jurisdiction of the transferee Court itself; that the lower appellate Court had no jurisdiction to entertain the appeal from the order of the original Court executing the decree, inasmuch as it was an order properly coming under Rule 58, Order XXI, Civil P. C., allowing the claim petition of the appellant; &, finally, that the judgment of the lower appellate Court reversing that of the Court of first instance on the merits of the claim was also vitiated by errors of law. 6. At the outset, it may be noted that Ghanshyam, the J. D., had three brothers, Dwarka Nath (the applts father), Shyam Sunder (Madhos father) & Chhotey Lal. The four brothers aforesaid inherited from their maternal grandfather the property sought to be proceeded against at the instance of the D. H. The D. H. took the attitude that the property was a joint one in which all the brothers had equal interest, & that Ghanshyam, being a member of that joint family, could bind the property in question. Both the Courts below have held that the family was not a joint one Hence, the position is that the decree against Ghanshyam cannot be executed against anyone, other than his legal representatives. It is clear, on the findings, that his four sons, who were also substituted on his death, can only be proceeded against as the J. Ds. Hence, the D. H. was not- entitled to bring the sons of Dwarka Nath of Shyam Sunder or Chhotey Lal on the record of the execution proceedings in the category of J. Ds. by substitution in place of the original J. D. Ghanshyam. Hence, the D. H. was not- entitled to bring the sons of Dwarka Nath of Shyam Sunder or Chhotey Lal on the record of the execution proceedings in the category of J. Ds. by substitution in place of the original J. D. Ghanshyam. The position, therefore, is that the D. H. alleged that all the persons sought to be substituted by him were the legal representatives of Ghanshyam : on the other hand, the objector contended that only the sons of Ghanshyam could be liable, if at all, under the decree against Ghanshyam. Such an objection, in my opinion, comes within the purview of Section 47, Civil P. C. which enjoins the executing Court to decide the question of whether certain persons alleged to be the legal representatives of a J. D. were really the persons who could be substituted as the legal representatives of the deceased J. D. If the simple question in controversy between the parties were whether or not the property proceeded against belonged to Ghanshyam & his sons on the one hand or to the objector on the other, the question may have properly come within the purview of Rule 58, Order XXI, Civil P. C. But, as already indicated, the controversy between the parties was as to who were the legal representatives of the J. D., & that question can properly be decided in an objection under Sec. 47, ,Civil P. C. That being so, in my opinion there is no substance in the contention raised on behalf of the appellant that no appeal lay to the lower appellate Court against the decision of the executing Court on the question of whether all the persons sought to be brought on the record as the J Ds. were really the legal representatives of the J. D . 7. A more serious objection to the competence of the executing Court & of the lower appellate Court to go into the questions in controversy between the parties is based on the provisions of Sec. 50, Civil P. C., Sub-section (1) of which lays down that, where the J. D. has died before the decree has been fully executed, the D. H. may apply to the Court which passed the decree to execute the same against the legal representative of the deceased. The contention of the applt. The contention of the applt. is that the Muzaffarpur Court was not competent to go into the question as to who are the legal representatives of the deceased J. D. & that it was the Munsif s Court at Mahaban in the district of Agra who could have determined this question. It is true, that under Sec. 50, Civil P. C. , it is the Court which passed the decree which is empowered by Sub- Section (1), of Sec. 50, to order the execution of the decree against the legal representative of the deceased J. D. But it is not correct to say that it is a matter which goes to the root of the jurisdiction of the Court. The most authoritative decision on this question is that of their Lordships of the Judicial Committee in the case of Jang Bahadur V/s. Bank of Upper India, Ltd., 55 IA 227. In that case their Lordships have held that, though, by virtue of Section 50 of the Code, the Court which made the decree is the oroper Court to order the execution against he legal representative of a deceased J. D., such a jurisdiction is not exclusive, & that, if the ransferee Court has orderd the execution of he decree against the legal representatives of a deceased J. D., it is an irreularity in procedure which can be waived. In that case their Lordships went into the provisions of Civil P. C. of 1859, 1877, 1882 & the present Code of 1908. Their Lordships also noticed the "apparent divergencies of opinion among the different High Courts in India on this question", & pointed out that there was no real conflict between the different decisions in India, which they reconciled by making the following observations : "If the J. D. dies before any such certificate is issued, the Court of transfer does not lose its jurisdiction over the execution proceeding, which does not abate by reason of the death. But before execution can proceed against the legal representative of the deceased J. D. the D. H. must get an order for substitution from the Court which passed the decree. This is a matter of procedure & not of jurisdiction. The jurisdiction over the subject-matter continues as before, but a certain procedure is prescribed for the exercise of such jurisdiction. But before execution can proceed against the legal representative of the deceased J. D. the D. H. must get an order for substitution from the Court which passed the decree. This is a matter of procedure & not of jurisdiction. The jurisdiction over the subject-matter continues as before, but a certain procedure is prescribed for the exercise of such jurisdiction. If there is non-compliance with such procedure the defect might be waived & the party who has acquiesced in the Court exercising it in a wrong way cannot afterwards turn round & challenge the legality of the proceedings." 8. Applying the dicta of their Lordships of the P. C. to the facts of the present case, can it be said that the appellant had waived by acquiescence the irregularity in the procedure of the Court at Muzaffarpur? As soon as the appellant appeared, he raised the objection that the Muzaffarpur Court had no power to hold the enquiry under Sec. 50, Civil P. C. , & its order passed ex parte, substituting all the persons whom the D. H. wanted to be substituted in place of the deceased J. D. was illegal. But the Court overruled the objection, holding that the order was not void ab initio. The lower appellate Court also agreed with that observation of the Court of first instance, though it reversed the latters decision on merits. It cannot, therefore, be said that there has been any waiver or acquiescence by the appellant in the order making substitution in place of the deceased J. D. 9. But reliance was placed on behalf of the D. H. on the D. B. ruling of this Court in the case of Debendra Nath V. G. A. Aratoon 19 Patna 838. In that case their Lordships relied upon the decision of the Judicial Committee referred to above, & held that the appellate Ct. should not interfere with an order passed under Sec. 50 made by a Ct .to which the decree had been transferred for execution where the merits of the case are not affected by the irregularity. Their Lordships referred to the previous decisions of this Ct. in the cases of Chandra Chur Deo V/s. Mt. Sham Kumari 11 Patna 445 & Kalu Ram. Their Lordships referred to the previous decisions of this Ct. in the cases of Chandra Chur Deo V/s. Mt. Sham Kumari 11 Patna 445 & Kalu Ram. V/s. Firm Sheonand Rai Jokhi Ram, 11 Pat 580, which were illustrations of the application of the rule laid down by their Lordships of the Judicial Committee in the case discussed above. It has been argued on behalf of the respondent D. H. that we should follow the decision of the Division Bench of this Court in the case of Debendra Nath V. G. A. Aratoon,19 Patna 838. But in that case their Lordships held that, as the decree had been transferred to Ranchi, which, was the place of the J. D. they could not be said to have been prejudiced in the proper prosecution of their case, if the Ranchi Court passed the order impugned. But in the present case it appears that the appellant is a resident of Gokhul in the district of Mathura, & both the Courts below have made a point that some persons belonging to their family, who could have thrown a light on the questions in controversy between the parties, had not been examined in this case. The lower appellate Court has adversely commented upon the non-examination of the sons of Ghanshyam & the absence of the appellants mother from the witness box. Hence, it cannot be said that the appellant has not been prejudiced in the trial of this case by the Muzaffarpur Court going into the issues involved in the case. 10. For these reasons, in my opinion, the executing Court should have stayed its hands & called upon the D. H, to take recourse to proceedings under Sec. 50 (1), of Civil P. C. in the Mahaban Court which passed the decree, & then the execution in Muzaffarpur Court should have gone on. In my opinion, this irregularity in the procedure has affected the merits of the case, & I would, therefore, set aside the order of the Courts below, & uphold the objection raised by the appellant. It is not necessary, therefore, at this stage to go into the merits of the case which are left open to be determined after the objections of the appellant have been gone into by the Court which passed the decree under execution. 11. It is not necessary, therefore, at this stage to go into the merits of the case which are left open to be determined after the objections of the appellant have been gone into by the Court which passed the decree under execution. 11. In the result, the appeal is allowed, & the judgment & orders passed by the Courts below set aside with costs in all the Courts. Mahabir Prasad, J. 12 I agree.