Muhammathu Kunju v. Muhammathu Kunju — 1951 DIGILAW 62 (KER)

Judgment :- 1. This is a decree-holder's appeal. In O.S. No. 89 of 1101 on the file of the District Court, Alleppey, the appellant obtained a money decree against one Mytheen Kunju on foot of a hypothecation bond. Though the suit was to enforce a hypothecation an attachment before judgment was taken out by the appellant of certain immoveable properties on the footing they belonged to the defendant. Immediately the defendant's children (four in number) came forward with a claim in C.M.P. No. 5529 of 1101 that the attached properties were not liable to be proceeded against for any debt the defendant might owe, in that they (the claimants) had obtained full title to and possession of those properties under a registered udampady dated 22.8.1100 and that the defendant had no subsisting interest thereto. That claim petition was allowed to lie over until after the passing of the decree which took place on 14.3.1103. It is this decree which is now under execution. 2. Soon after the decree was passed, to be precise, on 18.6.1103 the appellant filed an execution application in E.P. No. 279 of 1103 for bringing the hypotheca and the properties attached before judgment to sale. The claim was enquired into after this petition came and on 20.6.1104 the court passed an order allowing it. The appellant then filed O.S. No. 36 of 1105 before the lower court to set aside that order and for a declaration that the udampady or partition arrangement on which the claimants rested their title and possession was executed in fraud of creditors. The lower court allowed the suit and set aside the order passed on the claim petition. That decision was given on 1.2.1110. The contesting defendants to the suit viz., the claimants preferred an appeal against it before the High Court of Travancore in A.S. No. 366 of 1110. 3. Meanwhile E.P. No. 279 of 1103 happened to be dismissed and Mytheen Kunju, the judgment debter, died not long afterwards. A fresh execution petition was filed on 2.6.1110 impleading the four claimants as legal representatives of the deceased and in that application it was prayed that the properties attached before judgment may be brought to sale. The claim order had, as noticed, been set aside on 1.2.1110. A fresh execution petition was filed on 2.6.1110 impleading the four claimants as legal representatives of the deceased and in that application it was prayed that the properties attached before judgment may be brought to sale. The claim order had, as noticed, been set aside on 1.2.1110. It would appear that the hypotheca was sold pursuant to the prior execution petition and purchased by the decree-holder himself but that proved to be of no avail to him as the judgment-debtor's title to the property was itself challenged in other proceedings. We are, however, not here concerned with that sale or the crop of litigation which it gave rise to. The second execution application was dismissed on 14.7.1110 and the next one wherefrom the present appeal arises was filed only on 8.6.1117. (E.P. 81 of 1117). That purported to be a continuation of E.P. No. 279 of 1103 and though it was opposed as time-barred, the court allowed the decree-holder's prayer to treat it as one to revive the first application. It is not very clear to our minds how that could have been done when another application had intervened and that was dismissed for want of prosecution. However it is common ground now that the order allowing the last execution petition, E.P. No. 89 of 1117 to be treated as a continuation of E.P. No. 279 of 1103 has become final. The decree-holder's prayer in this last application is to bring the properties attached before judgment to sale. A new party was also impleaded in it on the ground that he has obtained some interest in the attached properties under the judgment-debter's children, the other counter-petitioners to the application. 4. The appeal preferred against the decree the lower court passed in O.S. No. 36 of 1105 was pending when the question how far E.P. No. 89 of 1117 can be treated as a continuation of the prior application was being agitated before the execution court. The High Court pronounced its judgment in the appeal on 3.1.1118 and by that the lower court's decision setting aside the claim order was reversed. The parties now became relegated to the position they were on 20.6.1104 when the execution court allowed the claim order. The decision of the High Court made it impossible for the decree-holder to proceed against the attached properties on the footing that there was a pending attachment. The parties now became relegated to the position they were on 20.6.1104 when the execution court allowed the claim order. The decision of the High Court made it impossible for the decree-holder to proceed against the attached properties on the footing that there was a pending attachment. The question whether he could do it on any other basis is the principal question to be decided in the appeal. But we must first state how that question is brought up for decision. 5. The effect of the High Court's decision allowing the appeal (A.S. No. 366 of 1110) was that there ceased to be any attachment of the properties the decree-holder wanted to proceed against. On the date the High Court pronounced its judgment very nearly fifteen years had elapsed since the decree in O.S. No. 89 of 1101 was passed and a fresh execution application was in view of the twelve years' rule altogether out of the question. Though the High Court allowed the appeal and thus upheld the title the judgment-debtor's children claimed in the properties, the learned judges who decided the case had expressed in their judgment the view that as universal donees of the properties of their father they were liable for his debts. It was found that there were not sufficient materials in the case to make out the partition arrangement the father made with the children was a fraudulent transfer and hence void. All the same it is seen stated in the judgment that even without a displacement of the title the appellants derived from their father they had a liability to discharge their father's debts, as mentioned before, as universal donees. Taking advantage of these observations the decree-holder filed an application before the execution Court on 31.12.1120 seeking to amend E.P. 89 by introducing a prayer for fresh attachment of the very same properties he had got attached before judgment. An alternative prayer was also made that he may be allowed to sell the properties without attachment. The court repelled both the prayers and dismissed the application for amendment. As it was no longer open to the decree-holder to seek to proceed with the relief asked for in the execution petition, viz. sale of the properties attached before judgment that was also dismissed when the petition for amendment was rejected. The decree-holder has brought this appeal against that order. 6. As it was no longer open to the decree-holder to seek to proceed with the relief asked for in the execution petition, viz. sale of the properties attached before judgment that was also dismissed when the petition for amendment was rejected. The decree-holder has brought this appeal against that order. 6. The main question is whether the amendment applied for should have been allowed. Mr. T.K. Narayana Pillai, the learned counsel who appeared before us on behalf of the decree holder, did not contend that without the amendment any useful purpose would be served by proceeding with the execution. Unless the amendment is permitted to be made he did not want the execution petition to be restored to the file. It was also conceded that the prayer made in the amendment application to permit the decree-holder to sell the properties without fresh attachment was not proper. What Counsel pressed for was that an amendment so as to enable the introduction of a prayer for fresh attachment should be allowed by this Court. 7. The learned judge in the Court below turned down that prayer in the following terms:- The next question is whether the prayer for attaching the properties which is made 12 years after the date of the decree can be allowed. It is really a new prayer which is not contained in any of the existing petitions, which merely pray for the sale of the properties on the assumption that there is a subsisting attachment. The prayer for attachment of properties which is made after the lapse of 12 years is not legally sustainable. There is also no decree against defendants 2 to 5. We are afraid if the decision of the appeal is to rest solely on the question whether the lower court should have allowed the amendment we would have found it difficult to sustain the order. No doubt the court's discretion to allow amendment of a pending execution application after twelve years had elapsed from the passing of the decree is a discretion to be exercised very carefully and very sparingly. But in circumstances similar to the present courts have not felt powerless to allow suitable amendments to be made in order to enable the decree-holder to proceed further with the execution. But in circumstances similar to the present courts have not felt powerless to allow suitable amendments to be made in order to enable the decree-holder to proceed further with the execution. Here the necessity for the amendment arose on account of the decision the High Court gave raising a pending attachment long after the execution application was filed. In Jhorama v. Latchanna Dora - A.I.R. 1940 Mad. 19 King and Krishnaswami Ayyangar, JJ. had a case before them where the facts are strikingly similar to the present. In that case by an order in a previous appeal the High Court held an attachment to be illegal as the properties attached happened to be unenfranchised service inams. A prayer for fresh attachment in a pending execution application was however allowed to be introduced by way of amendment twelve years after the passing of the decree when the character of the property changed and it became attachable. The decision states that decided cases have laid down the very salutary rule that ordinarily an amendment should not be allowed which would have the effect of depriving the respondent of putting forward the plea of limitation, but that they do not say that in special circumstances the court is powerless to order such amendments, it was held that in that case the circumstances were so exceptional as to justify the amendment proposed. In our opinion the same is the case here. The comments Mr. Justice Patanjali Sastri made about that case in a subsequent decision of the Madras High Court where the question of amending an execution application after twelve years had elapsed from the date of the decree was elaborately discussed and a strict view taken regarding the court's powers in that behalf are well worth being quoted here. In that subsequent case Venkata Lingama v. Venkata Nabasimha - A.I.R. 1947 Mad. 216 the following observations regarding the case above-named occur on page 223 of the report: "We find nothing opposed to this view in 1939 M.W.N. 988 (A.I.R. 1940 Mad. 19) to which also our attention was called. In that subsequent case Venkata Lingama v. Venkata Nabasimha - A.I.R. 1947 Mad. 216 the following observations regarding the case above-named occur on page 223 of the report: "We find nothing opposed to this view in 1939 M.W.N. 988 (A.I.R. 1940 Mad. 19) to which also our attention was called. The decree-holder in that case did not seek to add fresh items of property to those included in this previous application for execution but only to add a prayer for attachment of some of those items which, having been released from attachment as unenfranchised service inams not liable to attachment, had since been enfranchised and thus become liable to be attached. The previous application which was filed during the subsistence of the prior attachment had asked for the sale of those properties, and all that the decree-holder subsequently required was that they should be re-attached before they were brought to sale, as the previous attachment had been set aside." 8. In our opinion the learned judge in the court below, took a very narrow view about the court's powers to amend an execution application when a fresh application would be barred under the twelve years' rule. However questions more fundamental to the case than this were raised before us and as we have after careful consideration came to the conclusion that the decree-holder cannot seek to proceed against these properties in the hands of the children of the deceased judgment-debtor in proceeding in execution, our decision that there was no serious impediment for the amendment being allowed serves the decree-holder no useful purpose. All the same we thought it proper to make it clear that we cannot agree with the decision of the court below on the ground on which it is based and that we cannot accept the very strenuous argument the learned counsel for the respondents urged before us to sustain it. All the decisions brought to our notice on this aspect of the case are referred to and reviewed in A.I.R. 1947 Mad. 216. 9. Besides the propriety involved in permitting the amendment asked for, two other questions were also raised before us. The first among them was whether the decree-holder can seek to proceed against the properties the judgment-debtor's children got from him during this life-time so long as the order allowing their claim remains not set aside. 216. 9. Besides the propriety involved in permitting the amendment asked for, two other questions were also raised before us. The first among them was whether the decree-holder can seek to proceed against the properties the judgment-debtor's children got from him during this life-time so long as the order allowing their claim remains not set aside. In allowing the claim against the attachment the learned District Judge, before whom the matter came up for disposal, passed his order in the following terms: "Ext. I Udampady shows that the defendant has gifted the properties to the claimants even before the date of the present suit. The claim is therefore allowed and the attachment raised. No order for costs." It was contended that though the High Court had expressed views to the effect that the properties in the hands of the donees will be liable as the gift comprised the entire assets of the defendant, the terms of the above order preclude the decree-holder from seeking to attach the properties over again. The argument was that the partition arrangement was virtually treated as a gift even by this order and that since it was treated as an impediment to attach those properties the execution court cannot go behind that order now and allow execution to proceed against them as if nothing had happened before. The decree-holder's answer was the attachment before judgment was effected as if the properties belonged to the judgment-debtor and that the effect of the order on the claim petition and its subsequent affirmation by the High Court in A.S. No. 366 of 1110 was only that as the properties did not belong to the judgment-debtor the title having validly passed to the donees, the decree-holder cannot proceed against them as properties belonging to the judgment-debtor. It was contended that the prior proceeding was no bar to execution being taken out as against those properties as belong to the donees themselves and that the previous order was no impediment in the way of the court permitting execution to be taken out with a view to give effect to the principle underlying S. 128 of the Transfer of Property Act referred to in the judgment of the High Court in A.S. 366 of 1110. That section has enacted that where a gift consists of the donor's whole property, the donee is personally liable for the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein. In the view we take on the next question raised by the respondent's learned Counsel, it is unnecessary to decide which of these rival contentions should be accepted. We shall for our present purpose assume, without deciding, that the claim order or the decision of the High Court in the subsequent suit to set it aside is no bar to the present claim to proceed against the properties sought to be re-attached provided, the condition precedents for the exercise of the right such as that the donees are universal donees and that they have properties in their hands not duly applied for payment of the donor's debts are satisfied. As on the question of amendment after the twelve years' period prescribed for execution was over, even if we were to decide this question on the lines of the above assumption it will not be of any assistance to the appellant here. As indicated earlier our decision on the third point arising in the case is going to be against the appellant and that must mark the end of his case to execute the present decree against these properties. 10. That point is, assuming the respondents are universal donees, a decree passed against the donor without the donees on record cannot bind them and cannot be executed against them. We have noticed that the partition arrangement was in 1100 and that the suit which resulted in the decree under execution was instituted only in 1101. The donor was the sole defendant in that case and his legal heirs, the present respondents came on the record as his legal representatives in the execution application filed in the case in 1110. Their title to the properties sought to be proceeded against did not result from, nor was it consequent upon, the death of the defendant. They got the properties under the partition arrangement of 1100 and their independent title was upheld by the court in 1104 when the donor was alive. That position was maintained by the High Court decision in A.S. 366 of 1110. They got the properties under the partition arrangement of 1100 and their independent title was upheld by the court in 1104 when the donor was alive. That position was maintained by the High Court decision in A.S. 366 of 1110. The Civil Procedure Code makes provision as to what a decree-holder should do to realise his debt when the judgment-debtor dies before the decree is fully satisfied. (S. 50). The Code also provides the mode of relief obtainable against the legal representative when the obligor happens to die before the suit. (S. 52). O. XXII makes provision for the procedure to be adopted in case of devolution of interest by death, insolvency, transfer etc., while the suit is pending. These form part of the procedural law, but if devolution of interest and the consequent transfer of liability happen to take place during the life-time of the obligor it looks fairly clear that if the person on whom the liability has got fastened is also to be made liable or the decree is otherwise to bind him the suit must be instituted against him as well. A suit on a lease where there is an assignment of the lease-hold interest or a suit on mortgage when there has been a subsequent mortgage or an assignment of the equity of redemption are familiar instances where this principle is often invoked. It is difficult to comprehend how a decree obtained against the donor alone in a suit instituted after the gift can be enforced against the donees or can be said to be binding on them as well. If we understood the learned Counsel for the appellant aright, as an abstract proposition of law, he did not dispute this position. He conceded that there may be cases in which the donee if he were made a party might succeed in showing that the debt was a bogus one or that it was duly discharged even before the gift came into being. His contention however was that there were no such circumstances in this case and to give effect to the above rule here will be to press technical considerations in such a way as to work injustice. We regret we cannot accede to the argument. If we were to accept it, it would really be an instance of hard case tending to make bad law. 11. We regret we cannot accede to the argument. If we were to accept it, it would really be an instance of hard case tending to make bad law. 11. It is unthinkable how a decree can be executed against a person or persons who are not bound by it. No doubt, S. 47 C.P.C. directs that all questions arising between the parties to the suit or their representatives shall be determined by the court executing the decree and the word 'representative' is wider in its connotation than the words 'legal representative'. S. 47, however, does not confer any right of proceeding in execution against persons who are not judgment-debtors themselves. The right of proceeding in execution against persons other than judgment-debtors is conferred by S.50, Civil Procedure Code. Sub-s. 1, S.50 provides that where a judgment-debtor dies before the decree is fully satisfied, the decree-holder many apply to the court which passed it to execute the same against the legal representatives of the deceased; and sub-s. 2 limits the extent of the liability of the legal representatives. The respondents are certainly not judgment-debtors nor are they legal representatives of the judgment-debtor so far as properties sought to be proceeded against are concerned. As noticed earlier they obtained title to the properties sought to be reattached long before the judgment-debtor died, or before the suit itself was instituted. They no doubt are persons or form some of the persons, on whom the estate of the judgment-debtor would have devolved had he died without disposing of his assets by deed inter vivos. They are not representatives of the judgment-debtor within the meaning of S.47 because the decree does not bind their interest in the properties. Nor are they the legal representatives of the judgment-debtor, as defined under the Code, or under S.50 for purposes of execution. S.(2)(11) states inter alia that "legal representative" means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. Though by their personal law the respondents are the legal heirs of the deceased judgment-debtor by reason of his death his estate did not devolve on them. They have no status as legal representatives any more than an ordinary transferee of the judgment-debtor would have had that status. Though by their personal law the respondents are the legal heirs of the deceased judgment-debtor by reason of his death his estate did not devolve on them. They have no status as legal representatives any more than an ordinary transferee of the judgment-debtor would have had that status. The liability which the decree-holder contends the respondents have, is one which would have arisen even if the donees were absolute strangers. The decree-holder's right against the present donees cannot be any the higher because under their personal law they happen to be the legal heirs of the deceased judgment-debtor. These propositions would seem to be elementary or common-place and if authorities be needed reference may be made to the decisions in Kameshwar Pershad v. Run Baha-Dur Singh - I.L.R. 12 Cal. 458 and Gulzari Lal v. Madho Ram - I.L.R. 26 All. 447 (F.B.). A purchaser of the judgment-debtor's interest who so far as such interest is concerned is bound by the decree will be the representative for the purpose of execution but not otherwise. That means the purchase must be after the decree or at least after the suit in which the decree is passed is brought. 12. The appellant's learned Counsel has not been able to invite our attention to any decided case or other authorities which run counter to the views expressed above. Some cases to which he drew our attention will presently be referred to, but before we proceed to do that we consider it helpful to refer to certain cases which support our view. In Joy Chandra v. Satis Chandra - AIR 1930 Cal. 762 the question arose whether the right of a creditor to follow the assets in the hands of a legatee is a right which has to be exercised by a suit or whether it can be exercised merely by levying execution against the assets in the hands of the legatee under a decree obtained against the legal representative. In that case a decree was passed for surrender of certain properties during the life-time of the person in possession, but mesne profits, were assessed only after his death with his legal representatives alone on the record. He, the defendant, had bequeathed the properties sought to be proceeded against for realisation of the mesne profits so determined to the shebaits of a certain idol. He, the defendant, had bequeathed the properties sought to be proceeded against for realisation of the mesne profits so determined to the shebaits of a certain idol. The question that arose for decision was whether the execution-creditor can proceed against the properties in the possession of the idol in execution of the decree passed against the administrators i.e., the legal representatives of the deceased defendant. The decision was that the property in the hands of the legatees can be proceeded against only by means of a fresh suit. It is instructive to read here what Sir George Rankin, C.J., who passed the judgment in that case said there. "The present question however is not merely whether the creditor can follow the assets in the hands of the legatee but whether he can do so by the simple process of levying execution under a decree against the executors or in this case, the administrators. It is reasonably clear to me that that he cannot do. As Lord Eldon pointed out in the case to which I have referred (Gillespie v. Alexander - 3 Russel C.C.136), the legatee cannot be affected except by a suit and it is not possible upon a judgment against the legal representative to proceed to attach property which has years before been parted with to a specific legatee. The matter was considered in the case of an alienee in the case of Greeder Chunder Ghose v. Mackintosh (1879) 4 Cal. 897. The language in the older Code of the section which corresponds to S.52 was some what different from what it is now and the alternations were apparently made in consequence of the observations made by Mr. Pontifex, J., in this very case where he pointed out that under that section it was intended to confine the procedure to property remaining in the possession of the legal representative, leaving the creditors to follow property improperly alienated by the legal representative by a separate suit. If one considers the language of S.52 of the Code and if one considers the machinery provided thereunder by R. 58 onwards of 0. 21, Civil P.C., it is clear to my mind that the right of a creditor to follow the assets in the hands of a legatee is a right which has to be exercised by a suit. If one considers the language of S.52 of the Code and if one considers the machinery provided thereunder by R. 58 onwards of 0. 21, Civil P.C., it is clear to my mind that the right of a creditor to follow the assets in the hands of a legatee is a right which has to be exercised by a suit. It cannot possibly be exercised merely by levying execution against the assets in the hands of the legatee under a judgment against the legal representative." What is true of a legatee must a fortiori be true of a donee. Another case we would refer here is a decision by Horwill, J. in Thiagaraja v. Narayanaswami - A.I.R. 1938 Mad. 684. It is enough for our present purpose to quote a short passage from that decision which reads thus: "It (S.52 C.P.C.) does not give the creditor a right to proceed against property which is no longer in the hands of the judgment-debtor. To proceed against a transferee he must therefore establish his equitable right to do so in a separate suit." 13. Now we shall proceed to refer to the decisions relied on by the learned Counsel for the appellants. Much store was laid by him on a decision of the Oudh Chief Court in Rugghu Singh v. Dy. Commr. Sitapur - A.I.R. 1930 Oudh 270. The facts in that case resemble the facts here except with regard to one matter. There the gift was made while the suit in which the decree under execution was passed was pending. It was however a money suit and nothing would seem to have depended upon the above circumstance. After the defendant died execution was taken out by attaching the property in the hands of the donee who was the only son of the defendant. The donee's objection to the attachment was not upheld by the execution court and he instituted a suit to set aside that order. All the three courts viz., the Court of the Subordinate Judge which tried the suit, the Court of the Additional District Judge which heard the appeal from the trial Court's decision and the Chief Court which heard the second appeal held that the donee's remedy was to take the execution court's order in appeal and not to institute a regular suit to vacate it. In fact that was the principal point which the Chief Court decided and as correctly noted in the head-note the other points decided were only that a point abandoned before a lower appellate court, though a point of law, cannot be raised in second appeal and that S.128, Transfer of Property Act applies equally to a Mohammedan donee. The effect of the decision no doubt was to make the property in the hands of the donee liable to be proceeded against for a decree obtained during the donor's life time without the donee being made a party to it. But we cannot regard the Chief Court having decided the case that way. All that happened there was that the wrong procedure adopted by the donee to get the execution court's order vacated eventually brought about that result. 14. Another case cited by the appellant's counsel was that reported in Chettiar Firm v. Teo Ee San - AIR 1927 Rang. 273. The only point decided there was that where one of the legal representatives, who was a legatee under the will left by the deceased debtor, was in possession of certain house property attached in execution of a personal decree against the executors, and was not made a party to the suit as a legatee, the title of the legatee should be decided in execution proceedings before removing attachment on the ground of his possession, and a separate suit was not necessary. We do not know how that case helps the appellant, but it may be added that there the legatee was a party defendant to the suit and that ultimately the court found the transfer he claimed to have from the executors was not really a bona fide one. Here in this case the claim the donees made was upheld by the execution court when the judgment-debtor was alive. 15. The third and the last case the learned Counsel for the appellant referred to on this branch of the case was a decision of the Calcutta High Court reported in Bhujendra Nath Biswas v. Sushamoyee Basu - AIR 1936 Cal. 67. There a rent decree obtained against certain female limited owners was allowed to be executed against properties in the hands of the reversioners to whom the last surviving female owner had relinquished her whole interests on an undertaking by them that they would discharge all her debts. 67. There a rent decree obtained against certain female limited owners was allowed to be executed against properties in the hands of the reversioners to whom the last surviving female owner had relinquished her whole interests on an undertaking by them that they would discharge all her debts. There the transfer of interest or relinquishment took place after the decree so that the decree was one binding on all subsequent transferees. The learned Judges (Guha and Bartley, JJ.) also placed reliance on the express undertaking the transferees had made with transferor to discharge all her debts including the particular decree debt. It was not open to the reversioners there to question the validity or the binding character of the decree. On the facts and circumstances of the particular case it was thought it unnecessary to drive the decree-holder to a fresh suit to realise or recover the fruits of the decree already passed. That case cannot certainly be extended beyond its own facts. However it is interesting to mention here that on the same facts and between the same parties in an earlier execution case another Division Bench (Nasim Ali and Henderson, JJ.) had held that the decree-holder must institute a fresh suit against the persons to whom the last of the female owners had relinquished all her interests in her father's properties. See Sudhamoyee v. Bhujendra - AIR 1935 Cal. 713. As a result of this decision the decree-holder instituted a regular suit and she obtained a decree. That case is reported in Sudhamoyee v. Bhujendra Nath - AIR 1937 Cal. 226. 16. Our decision on the third and last point in the case discussed above is that the decree-holder cannot seek to proceed against the properties in the hands of the respondents in the execution of the present decree to which they are not parties. No court will allow an amendment which would ultimately prove to be purposeless. It is clear from what we have said above that the decree-holder cannot have any relief against the respondents or the properties in their hands by proceeding in execution. The right of a creditor to follow the properties in the hands of a universal donee is a right which has to be exercised by a suit. It is clear from what we have said above that the decree-holder cannot have any relief against the respondents or the properties in their hands by proceeding in execution. The right of a creditor to follow the properties in the hands of a universal donee is a right which has to be exercised by a suit. We came across several cases in the books where suits were brought against a donor and the donee together or against the donee alone after the donor had died. The right which a creditor has against a universal donee cannot be exercised merely be levying execution against the properties in their hands under a judgment obtained against the donor. The only case where a decree was sought to be executed against a universal donee who was not a party to the creditor's suit was in AIR 1930 Oudh 268 already referred to and if we may say so the execution creditor's success there was by mere chance. The case did not go up to the Chief Court for a decision on the merits. 17. The present is really a hard case, but we cannot allow that to influence our decision. The respondents put forward their claim immediately the attachment before judgment was taken out in 1101 and all that the appellant had to do to get relief against them or the properties in their hands as well as to make them party defendants to the suit; instead he went on an entirely wrong track and has ultimately landed himself in the predicament he finds himself now. All the money and labour spent during the twenty five years the parties were in court have proved to be in vain. Thee was also a substantial sum due under the decree. 18. The appeal fails for the foregoing reasons and we dismiss it. As our decision rests on grounds different from that given by the court below we make no order for costs in the appeal. Dismissed.