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(3) On July 6, 1943, the trial Court at Gadag passed a decree in favour of the plaintiffs holding that the decrees against Mudlingangouda and the decrees passed against the legal representatives of Mudlingangouda could not be said to have been passed against the same judgment-debtor. This decision was taken to appeal and the learned Assistant Judge at Dharwar, who heard the appeal, following the decisions of this Court in -- 'Govind v. Mohoniraj', 3 Bom L R 407 and -- 'Chunilal v. Broach Urban Co.-op. Bank. Ltd.', 39 Bom L R 815 dismissed the appeal and confirmed the decree passed by the trial Court. In the judgment which he delivered, the learned Assistant Judge adverted to & decision of the full bench in -- 'Mulchand Kesaji v. Shiddappa', 48 Bom L R 571 (FB) which was also a decision on the construction of Section 73, Civil P. C., but which referred not to the question which arose directly for decision by him but to the question whether the decree which was passed against A, B and C and the decree which was passed against A alone could be said to be decrees passed against the same judgment-debtor. The full bench there, in -- 'Mulchand Kesaji v. Shiddappa', put a liberal construction on the words "the same judgment-debtor" used in Section 73, Civil P. C. and put great stress on the identity of property against which execution was sought rather than the identity of persons against whom decrees were passed 'eo nomine'. The learned Assistant Judge appeared to have thought that though such liberal construction should as well have been put in the matter of the decrees which came for scrutiny before him, he was concluded by the two decisions of our High Court reported in the case of --'Govind v. Mohoniraj', and in the case of ---'Chunilal v. Broach Urban Co-op. Bank Ltd.', above referred to. He, therefore, dismissed the appeal and confirmed the order passed by the trial Court. These second appeals have been filed by defendants 1, 3, 4 and 9 and by defendant 6 against that decision of the learned Assistant Judge and have come on for hearing and final disposal before us.

The object of this provision, in the case where the decree was passed against the deceased person himself, is to realise the decretal amount out of the properties, if any. left by the deceased and come to the hands of the legal representatives. Where a decree is passed against the legal representatives of a deceased person not only where the suit was originally instituted against the deceased person but was continued against his legal representatives on his death, the cause of action surviving, but also where the suit was instituted after his death, only against his legal representatives, the decree can be executed against the legal representatives under Section 52, Civil P. C. Section 52 says that "where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property." The object of execution, therefore, in both these cases either under Section 50 of the Code of Civil Procedure or under Section 52, Civil P. C. is to realise the decree whether passed against the deceased or passed against the legal representatives of the deceased out of the properties belonging to the deceased which have come to the hands of the legal representatives of the deceased. This being the object, it would be frustrated if a distinction of the type which found favour with the learned Judges in -- 'Govind v. Mohoniraj', 3 Bom L R 407 and -- 'Chunilal v. Broach Urban Co-op. Bank Ltd.', 39 Bom L, R 815 was held to be effective. No doubt on an 'eo nomine' construction of Section 73 and Section 2(10), Civil P. C. it would be possible to uphold the distinction. If, however, the liberal construction which was sought to be put upon these words "passed against the same judgment-debtor" in -- 'Mul-chand Kesaji v. Shiddappa', 48 Bom L R 571 (FB) was adopted, it would be possible to hold that all these decrees of the type mentioned above were passed against the same judgment-debtor and all the decree-holders would be entitled to come in and share in the rateable distribution of the assets.

(8) Besides the full bench decision of the Madras .High Court reported in -- 'Rama Krishnan Chettiar v. Kasi Vishwanathan Chettiar', 59 Mad 93 (F B) our attention was also drawn to a full bench decision of the Allahabad High Court reported in -- 'Hoti Lal v. Chatura Pra-sad', AIR 1941 All 110 (FB). Reliance was placed on behalf of the appellants on the judgment of the majority which upheld the liberal construction of the words "passed against the same judgment-debtor" in Section 73, Civil P. C. Mr. Murdeshwar, however, drew our attention to the minority judgment which upheld the view which has been so far adopted by our High Court in -- 'Govind v. Mohoniraj', 3 Bom L R 407 and -- 'Chunilal v. Broach Urban Co-op. Bank Ltd.', 39 Bom L R 815. The Calcutta High Court had also approved of the Bombay view in -- 'Hemendra Nath v. East Bengal Commercial Bank', 63 Cal 923 and --'Hemlata Dasi v. Bengal Coal Co. Ltd.', AIR 1935 Cal 738 and the Rangoon High Court had approved of it in -- 'Sarju Sukul v. Dubay', 1940 Rang. L R 492. The only other decision which we might refer to in this connection is the one reported in -- 'Sheo Charan Das v. Ram Saran Das', 24 Lah 497 which was also a decision of the full bench of that Court. We need not, however, go so far. It is sufficient to refer to the full bench decisions in -- 'Rama Krishnan Chettiar v. Kasi Vishwanathan Chettiar' and in -- 'Hoti Lal v. Chatura Prasad', and the Calcutta and Rangoon High Court decisions above set out. Untrammelled as we are by the principle of 'stare decisis' & having regard in particular to the full bench decisions of the Madras and Allahaba'd High Courts as also the observations which were made and the ratio which was adopted in our own full bench decision in -- 'Mulchand Kesaji v. Shiddappa', 48 Bom L R 571 (FB) we feel that in spite of the tenor of the decisions of our High Court on the question which has cropped up before us, in -- 'Govind v. Mohoniraj' and -- 'Chunilal v. Broach Urban Co-op. Bank Ltd.', the question is of such an importance as to be canvassed by a full bench of this Court. We, therefore, refer the following questions for decision of a full bench:

(13) Now, turning to the other High Courts, we have a full bench decision of the Madras High Court in -- 'Rama Krishnan Chettiar v.. Kasi Vishwanathan Chettiar', 59 Mad 93 (FB) which has placed a more liberal construction upon Section 73 than taken by Sir Lawrence Jenkins in -- 'Govind v. Mohoniraj', 3 Bom L R 407. To the same effect is the judgment of the Allahabad High Court, also in a full bench, in -- 'Hoti Lal v. Chatura Prasad', ILR (1941) All 77 (FB). There the liberal view was upheld by the majority, but Mr. Justice Bajpai who delivered the minority judgment pleaded for a strict literal construction to be placed upon the expression "the same judgment-debtor" used in Section 73 and pointed out the dangers of the Courts speculating as to what the intention of the Legislature was. It may be pointed out that Mr. Justice Bajpai was not prepared to accept the strict literal view as far as the facts similar to those in -- 'Chhotalal v. Nabibhai', 29 Bom 528 were concerned. The Lahore High Court also in -- 'Shiv Charan Das v. Ram Saran Das', 24 Lah. 497 (FB) has taken the same view as the Madras and Allahabad High Courts. As far as the Calcutta High Court is concerned, it has taken the contrary view. There is a judgment of Rankin C. J. sitting singly reported in -- Mahar Lal v. Lalita Sundari', . With very great respect, the only opinion expressed by the learned Chief Justice in this judgment is (p. 455):