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PETITIONER: THE ANDHRA BANK LTD.

       Vs.

RESPONDENT: R.   SRINIVASAN AND OTHERS.

DATE OF JUDGMENT: 31/08/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SUBBARAO, K. HIDAYATULLAH, M.

CITATION:  1962 AIR  232            1962 SCR  (3) 391  CITATOR INFO :             1979 SC1915  (6)

ACT: Legal Representative--Not resident within court’s  jurisdic- tion   and  not  appearing--judgment,  if   binding--Private International  Law--Applicability--Legatees  under  will--If legal  representatives of deceased  defendant--‘Estate’,  if means whole estate--Code of Civil Procedure, 1908 (Act V  of 1908), s.2 (11).

HEADNOTE: During  the pendency of two connected suits for recovery  of money  filed by the appellant in the Hyderabad Court one  of the  respondents  died  and his sons,  daughters  and  grand daughters   were   joined  in  the  suits   as   his   legal representatives as holding different pieces of his  property under a deed of settlement and a registered will executed by him.   The suits were decreed by the said court but  as  the decretal  money could not be realised in full the  appellant filed  the present suit for the balance in the  Madras  High Court  on the basis of the judgments of the Hyderabad  Court At the time of filing, the previous suits were competent and within  the  jurisdiction  of the  Hyderabad  Court  as  the deceased  respondent was a resident of Hyderabad  but  after his  death  at the relevant time his  legal  representatives were not residents of Hyderabad.  The respondents  contended inter  alia that they did not submit to the jurisdiction  of the Hyderabad Court as it had no jurisdiction over them  and the  foreign  judgments of that Court were  not  binding  on them.  the  high Court held that under the rule  of  private international law all personal actions must be filed in  the courts of the country where the defendant resided and as the legal  representatives were non-residents of  Hyderabad  the decrees passed against them were invalid. Held,  that the rule of private international law could  not be  applied to a case where the suit as initially filed  was competent  and  the  court before which  it  was  filed  was competent to 392 try-it.   If during the pendency of the suit  the  defendant died and his nonresident legal representatives were  brought

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on the record to defend the suit on his behalf to the extent of the assets of the deceased held by them, the jurisdiction of the court continued unaffected and the competence of  the suit as originally filed remained unimpaired. Sardar Gurdyal Singh v. The Raja of Faridkote, (1894) L.  R. 21  I.  A. 171, Travers v. Helley [1953] P.  246,  Dunne  v. Saban  [1955] P. 178, Mountbatten v. Mountbatten, [1959]  P. 43,  Dulles  v.  Vidler,  [1951]  1  Ch.  842,  Schibsby  v. Westinholz, (1 870) L.R. 6 Q. B. 155 and Emanuel v. Symon, [ 1908] 1 K.B. 302, referred to. Kanchamalai  Pather  v.  Ry.  Shahaji  Rajah  Saheb,  (1936) I.L.R.  39  Mad. 461 and Erara v  Sidramappa  Pasare  (1897) I.L.R. 21 Bom. 424, not applicable. Under  s. 2 (1 1) of the Code of Civil Procedure the  clause (a  person  who in law represents the estate of  a  deceased person, must include legatees under wills and that  ,Estate" cannot necessarily mean the whole of the estate. Natesa  Sastrigal v. Alamelu Achi, (1 950) 1 M. L.  J.  476, disapproved.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 508 of 1958. Appeal from the judgment and decree dated July 27, 1951,  of the Madras High Court in A. S. Nos. 172 and 194 of 1947. A.   Ranganatham Chetty, C. V. Narasimharao, A.   V.  Rangam and T. Satyanarayana, for the appellant. A.V.  Viswanatha  Sastri  and  S.  Venkattakrishnan,  for respondents Nos.  1 to 3. R.Ganapathy Iyer and T. K. Sundara Raman, for respondents Nos. 5 to 9. R. Ganapathy Iyer, Thiagarajan and R. O. Gopalakrishnan  for respondents Nos.  11 and 12. 1961.   August 31.  The Judgment of the Court was  delivered by GAJENDRAGADKAR,  J.-This  appeal has been  brought  to  this Court  with  a certificate issued by the Madras  High  Court under Art. 133(1)(a) of the Constitution and it arises  out, of  a suit (O.S.No. 83 of 1945) filed by the  appellant  the Andhra Bank  393 Limited against the twelve respondents.  This suit was based on  two  foreign judgments.  Exs.  P. 1 and P.3,  which  had been obtained by the appellant against the said  respondents in  Hyderabad.   Respondent 1 is the, son  of  Raja  Bahadur Krishnamachari  (hereafter called Raja Bahadur) who died  in March, 1943.  Respondent 1 and his father were residents  of Hyderabad.   Raja Bahadur was practising as an  advocate  in Hyderabad  and subsequently he was appointed  the  Advocate- General.   In September, 1935, respondent 1 was indebted  to the appellant in the sum of Rs. 14.876-3-7 in respect of  an overdraft account.  In May, 1938, he became indebted to the- appellant  in  the sum of Rs. 8,217-11-6 in respect  of  his borrowings on a pledge of sanitary-ware goods.  Raja Bahadur had  executed a letter of guarantee (Ex.  P-18) in  January, 1932 whereby he guaranteed the repayment of monies  borrowed by  respondent  1  up to the limit of Rs.  20,000.   As  the amounts due, from respondent 1 remained unpaid the appellant had  to institute two suits in the Hyderabad High Court  for their  recovery.   These suits were numbered 47  and  53  of Fazli  1353.  After they were filed in the said  High  Court they were transferred to the City Civil Court and renumbered as  Suits  Nos. 62 and 61 of Fazli 1353.  Whilst  the  suits were pending Raja Bahadur who had been impleaded to the suit

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along  with  respondent  1 died.   Thereupon  the  appellant joined the present respondents 2 to 12 in those two suits as legal  representatives  of Raja Bahadur on the  ground  that they   were  in  possession  of  different  pieces  of   his properties under a settlement deed of 1940 and a  registered will  executed  by him on August 28, 1942 (Ex.  P.  7).   In both the suits the appellant obtained decrees with costs  on October, 5, 1944.  The said decrees directed respondent 1 to pay the whole of the amount claimed by the appellant against him and respondents 2 to 12 to pay Rs. 20,000 which was  the limit of guarantee I executed by 394 Raja  Bahadur.   All the respondents were  directed  to  pay interest  at  3 per cent, on the amount  due  against  them. Whilst the suits were pending the goods pledged in Suit  No. 62  were  auctioned  and the sale  proceeds  realised  which amounted  to Rs. 4,232-1-7 were given credit for whilst  the Court  ,Passed the decrees in the said suits.  According  to the  appellant an amount of Rs. 27,923-6-5 was still due  on the  said decrees and so in the present suit  the  appellant claimed from respondent 1 the .whole of the said amount  and from respondents 2 to 12 Rs. 20,000 with interest and costs. Respondent 2 is the son of Raja Bahadur and respondents 6 to 9  are his minor sons.  Respondents 3, 4 and 5 are the  sons of  respondent  1.  Respondent 10 is the  daughter  of  Raja Bahadur while respondents 11 and 1 2 are his grand daughters through his two daughters.  Respondent 2 for himself and  as guardian  of his minor sons resisted the  appellant’s  claim and contended that the Hyderabad Courts had no  jurisdiction over them and therefore the decrees passed by the City Civil Court was without jurisdiction.  They also alleged that they had  not  been  served  with notice  of  suit  and  had  not submitted  to  the  jurisdiction of  the  City  Civil  Court Respondent 1 did not resist the suit but his sons did.  They alleged that they were not the legal representatives of Raja Bihadur  and  had been improperly added as  parties  to  the Hyderabad  suit.   They joined respondents 2 and 6 to  9  in their contention that the Hyderabad Court was not a Court of competent  jurisdiction  and they Pleaded that  the  foreign judgments  had  not been based on the merits  of  the  case. Respondents 10 to 12 filed similar pleas. On  these  pleadings  the learned trial  judge  framed  five principal  issues.   He held that the City  Civil  Court  of Hyderabad  had jurisdiction to try the- suits and  that  the contesting  respondents were bound by the decrees passed  in the said suits.  He                             395 also  found that the respondents who had been  impleaded  in the  suits  as legal representatives of  the  deceased  Raja Bahadur  were his legal representatives in law and had  been properly joined.  The other issues framed by the trial court in   respect  of  the  other  contentions  raised   by   the respondents  were’also found against them.  It is,  however, unnecessary  to  refer  to those  issues  and  the  findings thereon.  In the result a decree was passed in favour of the appellant for the amounts respectively claimed by it against respondent  1 and against the assets of Raja Bahadur in  the hands  of respondents 2 to 12 with interest at 3  per  cent. per  annum  from  the date of the plaint till  the  date  of realisation.  The respondents were also directed to pay  the costs of the appellant. Against this decree two companion appeals were filed in  the High  Court  at Madras.  Civil Appeal No. 172  of  1947  was preferred  by respondents 3 to 5, whereas Civil  Appeal  No. 194  of  1947  was preferred by respondent 2  and  his  sons

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respondents  6  to  9.  It was urged  by  the  two  sets  of respondents in their two appeals that the trial court was in error  in  holding that the Hyderabad Court was a  Court  of competent  jurisdiction  and that the decrees passed  by  it were valid.  It was also urged that the decrees in  question were  contrary to natural justice and that respondents 2  to 12  were  in  fact not the  legal  representatives  of  Raja Bahadur  and  so  the Hyderabad  Court  acted  illegally  in passing  the said decrees against them.  The High Court  has upheld  the first contention raised by the  respondents  and has held that the City Civil Court of Hyderabad which passed the  decrees was not competent to try the suits and  so  the decrees cannot be enforced by a suit under s. 13 (a) of  the Code  of Civil Procedure.  According to the High  Court  the appellant  had  failed to prove that any of  the  contesting respondents had submitted to the jurisdiction of the Hydera- bad Court.  Since the High Court came to the conclusion that the decrees were invalid it did not think it 396 necessary  to consider the two other arguments urged by  the respondents.   Consistently  with  its  findings  that   the decrees  were invalid and had been passed by  the  Hyderabad Court  without jurisdiction the High Court allowed both  the appeals  preferred before it by the two sets of  respondents and has dismissed the appellant’s suit.  It is against  this decision  that the appellant has come to this Court  with  a certificate issued by the High Court. The  first  question  which falls to be  considered  in  the present appeal is whether the City Civil Court at  Hyderabad was a Court of competent jurisdiction when it pronounced the judgments  in the two suits filed by the appellant  in  that Court.  Under s. 13 of the Code a foreign judgment shall  be conclusive  as  to any matter thereby  directly  adjudicated upon  between the same parties except where it has not  been pronounced  by  a Court of competent  jurisdiction.   It  is common  ground that when the suits were filed  in  Hyderabad Raja  Bahadur and respondent 1 were residents  of  Hyderabad and  the Hyderabad Court was therefore competent to try  the suits  at  the time when they were filed.   The  actions  in question  were actions in personam but they were within  the jurisdiction  of  the Hyderabad Court  at  their  inception. This  position  is not disputed.  It is also  not  seriously disputed  that respondents 2 to 12 who were added  as  legal representatives of the deceased Raja Bahadur did not  reside in  Hyderabad at the relevant time and were  foreigners  for the  purpose of jurisdiction.  The High Court has held  that under the well established rule of private international law all  personal  actions must be filed in the  Courts  of  the country where the defendant resides, and since respondents 2 to 12 had not submitted to the jurisdiction of the Hyderabad Court.   The Hyderabad Court had no jurisdiction to try  the claim against them.                             397 The  rule  of private international law on  which  the  High Court has relied is no doubt well settled.  It has been thus enunciated  by Dicey in rule 26 : "When the defendant in  an action in personam is at the time of the service of the writ not  in England the Court has no jurisdiction  to  entertain the   action"   (1).   According  to   Cheshire’s   "Private International  Law" this rule is based on the  principle  of effectiveness.  "Jurisdiction", observes Cheshire,  ’depends upon physical power, and since the right to exercise  power, or,  what is the same thing in the present  connection,  the power  of  issuing  process,  is  exercisable  only  against persons  who are within the territory of the Sovereign  whom

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the Court represents, the rule at common law has always been that  jurisdiction  is confined to persons who  are,  within reach of the process of the Court at the time of service  of the  writ.  A Court cannot extend its process and  so  exert sovereign power beyond its own territorial limits"(2).  This limitation  on  the  competence of Courts  to  try  personal actions    against   non-resident   foreigners   has    been emphatically  laid down by the Privy Council in the case  of Sirdar  Gurdyal Singh v. The Rajah of Faridkote(3).   "In  a personal  action", observed the Earl of  Selborne,  speaking for   the  Board,  "to  which  none  of  these   causes   of jurisdiction previously discussed apply, a decree pronounced in absentee by a foreign Court to the jurisdiction of  which the  defendant has not in any way submitted himself  if;  by international   law  an  absolute  nullity"  (P.185).   This position  is not and cannot be disputed ; but  the  question which  still remains is whether the High Court was right  in applying  this  rule to the appellant’s case.   As  we  have already  seen, at their inception the two suits  brought  by the  appellant in the Hyderabad Court were competent.   They were brought against (1)  Dicey’s "Conflict of Laws." 7th Ed., p. 182. (2)  Cheshire’s  "Private  International Law", 5th  Ed.,  P. 107. (3)  (1894) L. R. 21 I. A. 171. 398 residents  over whom the Hyderabad Courts had  jurisdiction, and  so  there can be no manner of doubt that as  they  were filed  they  were perfectly competent ’and  filed  before  a Court of competent jurisdiction.  If after the death of Raja Bahadur  his  legal representatives  who  were  non-resident foreigners  were  brought on the record in the  said  suits, does  the  rule of private international  law  in  questions invalidate  the subsequent continuance of the said suits  in the  Court before which they bad been validly instituted  at the  outset ? The High Court has answered this  question  in favour  of the respondents and the appellant  contends  that the High Court was wrong in giving the said answer. In  this  connection  it has been urged  before  us  by  Mr. Ranganathan  Chetty,  on behalf of the  appellant,  that  in considering the effect of the rule of private  international law  on which the High Court has relied it may be  ’relevant to  remember that the recent judicial decisions  disclose  a healthily tendency to relex the rigour of the said rule.  In fact  Mr.  Chetty has invited our attention to  Exception  8 which Dicey has stated as one of the exceptions to the rule. Under this Exception, "whenever any person, out of  England, is  a  necessary  or a proper party to  an  action  properly brought against some other person duly served with a writ in England,  the Court may assume jurisdiction to entertain  an action against such first mentioned person as a co-defendant in  the  action" (Pp. 201,202).  The argument is  that  this Exception  shows that where a. personal action  is  properly brought  against  one person in an English Court and  it  is found  that  a  nonresident  foreigner  is  a  proper  or  a necessary party to the action in order to sustain the  claim made  against the resident in England, it would be  open  to join  the  non-resident foreigner as a proper  or  necessary party notwithstanding the fact that the said foreigner is 399 non-resident  and  not subject to the  jurisdiction  of  the Court.  This Exception is pressed into service to show  that the  rule  in question is not rigorously enforced  in  every case. In support of this argument Mr. Chetty has also invited  our

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attention to the decision of the Probate Court in Travers v. Holley  (1).  In that case a husband and wife shortly  after their  marriage in the United Kingdom in 1937 went  out.  to Sydney  in  New  South Wales and took with  them  all  their belongings.  The husband then thought that the  Commonwealth offered him better prospects.  Having settled down in Sydney the  husband  invested money in a business  which,  however, collapsed on the outbreak of war.  For a time thereafter  he worked, on a sheep farm in Northern New South Wales  leaving his  wife  at Sydney where a child had been  born  in  1938. Later  he secured a Commission in the Australian forces  and was  in  due course transferred to the British  forces.   In August,  1943 the wife filed a petition for divorce  in  the Supreme Court of New South Wales on the allegation that  she had  been deserted by her husband since August,  1940.   The petition  succeeded and the wife was granted a decree  which was  made  absolute in November 30, 1944.  The  husband  was served with a notice of the petition but he did not  defend. In  due  course both the parties remarried.   The  husband’s remarriage,  however, proved unsuccessful and so in 1952  he obtained  a  decree  for  divorce on  the  ground  that  the Australian  decree  was invalid because at the time  it  was granted neither husband nor wife was domiciled in New  South Wales  and  the  wife  by  remarrying  had  been  guilty  of adultery.   Against this decree the wife appealed,  and  her appeal  was  allowed.   In discussing the  validity  of  the decree  passed by the Supreme Court of Now South  Wales  the Court  held that "the Courts of New South Wales by s.  16(a) of the New South Wales Matrimonial (1) [1953] P. 246. 400 Causes Act, No. 14 of 1899, and the English Courts by s.  13 of  the  Matrimonial  Causes  Act,  1937  claimed  the  same jurisdiction,  and  it would be contrary  to  principle  and inconsistent  with  comity  if the Courts  of  this  Country refused  to recognise a jurisdiction which mutates  mutandis they  claimed  for themselves ; and that even if,  while  in desertion, the husband had reverted to his English  domicile of origin the New South Wales Court would not be deprived of jurisdiction".  In other words, on the ground of the rule of reciprocity  the validity of the decree passed by the  Court of  New  South  Wales  was not  allowed  to  be  effectively challenged  by the husband in that case, on the ground  that the  relevant  statutory provisions of the  matrimonial  law were substantially the same.  We ought, however to add  that on two subsequent occasions the principle enunciated in  the case of Travers (1), it has been said, should be confined to the  special facts and features of that case.  In  Dunne  v. Saban (2) it is stated that "’the observations in Travers v. Holley  (1)  as to recognition in certain  circumstances  of foreign decrees founded upon a jurisdiction similar to hours were directed to a case where the extraordinary jurisdiction of  the  foreign Court corresponded almost  exactly  to  the extraordinary jurisdiction exercisable by this Court" ;  and in  Mountbatten v. Mountbatten (3) Davies, J. has  raised  a whisper  of protest against making any further extension  of the principle (p.81). Mr. Chetty, however, contends that the principle of reciprocity is gradually finding more and more, recognition in modern decisions, and on the strength of. the said decisions it should be held that the relevant statutory provisions in Hyderabad and India being exactly the same the rule  of private international law on which the  High  Court relied should not be rigorously applied to the present case (1) [1953] P. 246.            (2) [1955] P. 178. (3) [1959] P.43.

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                           401 In  support of his argument Mr. Chetty has also invited  our attention to the obiter observations made by Denning, L.  J. in  In  Re Dulles Settlement (No.2) Dulles  v.  Vidler  (1). Denning,  L. J. observed that the relevant rules  prevailing in  the  Courts  in the Isle of Man  corresponded  with  the English rules for service out of the jurisdiction  contained in  0. 11 and added "I do not doubt that our  Courts  would’ recognise  a judgment properly obtained in the  Manx  Courts for   a  tort  :committed  there,  whether   the   defendant voluntarily submitted to the jurisdiction or not; just as we would  expect  the  Manx,  Courts  in  a  converse  case  to recognise  a  judgment  obtained in  our  Courts  against  a resident  in the Isle of Man, on his being  properly  served out  of our: jurisdiction for a tort committed  here".   Mr. Chetty  points out that this observation again is  based  on the  rule  of  reciprocity and  it  illustrates  the  modern tendency  to relax the rigorous application of the  rule  of private international law in,’ question. On the other hand it may be pertinent to point out that  the present  editor of Dicey’s "Conflict of laws" has  commented on  the  observations of Denning, L. J.  by  observing  that "this suggested application of the principle of  reciprocity is  of  a more sweeping character than  its  application  to foreign  divorces, because in the first place it extends  to enforcement and not merely to recognition, and in the second place  it would, if logically carried out mean that  English Courts  would enforce foreign judgments based on any of  the very  numerous jurisdictional grounds specified in Order  1 1,  rule 1 of the Rules of the Supreme Court".   The  editor further  observes  that "it may be doubted  whether  English Courts   would  be  prepared  to  carry  the  principle   of reciprocity  as  far  as  this,  for  the  suggestion  under discussion  was made by a single Lord Justice in  an  obiter dictum,  and  moreover  it is directly at  variance  with  a weighty decision of the Court of Queen’s (1)  [1951] Ch. 842. 402 Bench"  (Schibsby  v. Westenholz (1).  Therefore we  do  not think that this general argument that the rigour of the rule should be relaxed can be accepted. However,  even  if the rule has to be applied  the  question still remains whether it has to be applied at the  inception or the commencement of the suit as well as at a later  stage when  on  the  death  of one of  the  defendants  his  legal representatives are sought to be brought on the record.   In ealing with this question it would be relevant to recall the five cases enunciated by Buckley, L. J. in Emmanual Ors.  v. Symon(2)  in  which the Courts of England  would  enforce  a foreign  judgment.   "In  actions  in  personam",   observed Buckley, L. J., ’It here are five cases in which the  Courts of this country will enforce a foreign judgment : (1)  where the  defendant is a subject of the foreign country in  which the  judgment has been obtained ; (2) where he was  resident in the foreign country when the action began ; (3) where the defendant in the rum in character of plaintiff has  selected the  for  which  be is afterwards sued ; (4)  where  he  has Voluntarily  appeared ; and (5) where he has  contracted  to submit  himself  to  the forum in  which  the  judgment  was obtained".   It would be noticed that all these  five  cases indicate that the material time when the test of the rule of private  international law has to be applied is the time  at which the suit is instituted In other words these five cases do  not seem to contemplate that the rule can be invoked  in

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regard  to a suit which had been properly instituted  merely because  on  the death of one of the  defendants  his  legal representatives who have been brought on the record are non- resident foreigners.  The procedural action taken in such  a suit  to  bring the legal representatives  of  the  deceased defendant  on  the  record  does not  seem  to  attract  the application of the rule.  If that be so (1)  (1870) L. R. 6 Q. R. 155 (Dicey, p.28). (2) [1908] 1 K. B. 302.                             403 it is at the commencement or the initiation of the suit that the  rule has to be applied, and if that is so there  is  no doubt  that  the  two  suits in  the  City  Civil  Court  at Hyderabad were competent when they were brought and the City Civil Court at Hyderabad which tried’ them had  jurisdiction to try them. In form the claim made by the appellant against  respondents 2  to  12  in the Hyderabad Court was in  the  nature  of  a personal  claim  ; but in substance the appellant  would  be entitled  to execute its decree only against the  assets  of the  deceased Raja Bahadur in the hands of respondents 2  to 12.  That is the true legal position under s. 52 of the Code of  Civil Procedure in India, and to the same effect is  the corresponding  provision of the Code of Hyderabad,  Besides, when  the leg al representatives are brought on  the  record the procedural law both in India and Hyderabad requires that they  would  be entitled to defend the action only  on  such grounds  as the deceased Raja Bahadur could have taken.   In other words, the defence which the legal representatives can take  must  in  the  words of 0.  22,  r.4,  sub-r.  (2)  be appropriate  to their character as legal representatives  of the  deceased  defendant.   No.  plea  which  the   deceased defendant  could  not have taken can be taken by  the  legal representatives.  That emphatically brings out the character of  the  contest between the legal representatives  and  the appellant.   The appellant in substance is proceeding  with, its claim originally made against the deceased Raja  Bahadur and it is that claim which respondents 2 to 12 can defend in a   manner   appropriate  to  their   character   as   legal representatives.   If  the suits originally brought  by  the appellant  in Hyderabad were competent how could it be  said that  they ceased to be competent merely because one of  the defendants  died ? The Hyderabad Court had  jurisdiction  to try the suits when they were filed and there is nothing 404 in the rule of private international law to suggest that the said  jurisdiction automatically came to an end as  soon  as one   of   the  defendants  ’died  leaving  as   his   legal representatives persons who were nonresident foreigners. In considering this aspect of the matter we may refer to the statement in Salmond’s "Jurisprudence" that "inheritance  is in  some  sort a legal and fictitious  continuation  of  the personality  of the dead man, for the representative  is  in some sort identified by the law with him whom be represents. The rights, which the dead man can no longer own or exercise in  propria  persona, and the obligations which  he  can  no longer  in propria persona fulfil, he owns,  exercises,  and fulfils  in  the  person of a living  substitute.   To  this extent,  and in this fashion, it may be said that the  legal personality  of  a  man survives  his  natural  personality, until,  his  obligations  being  duly  performed,  and   his property  duly  disposed of, his  representation  among  the living  is  no longer called for" (1).   These  observations support  the appellant’s contention that essentially and  in substance  and  for the purpose of  jurisdiction  the  suits

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brought by the appellant against Raja Bahadur did not  alter their  character even after his death and continued  to  be, suits substantially against his estate as represented by his legal  representatives.  If that be the true legal  position there would be no scope for urging that the Court which  was competent to try, the suits as originally filed ceased to be competent  to try them because the legal representatives  of the deceased Raja Bahadur were non-resident foreigners.  ’To hold  otherwise  would lead to this result  that  the  suits against  Raja Bahadur would abate on his ’death  though  the cause  of Action survives and the decree passed against  his assets  in  the hands of his legal  representatives  can  be effectively executed. The High Court seems to have thought that (1)  Salmond On ’Jurisprudence’, 11th Ed., p. 482. 405 the  Hyderabad Court"s jurisdiction terminated on the  death of Raja Bahadur so far as the appellant’s claim against  him was concerned "land the same cannot avail against his  legal representatvies", and it has observed that there is judicial authority in I support of this conclusion.  The decision on. which the High Court has relied in support of its conclusion is the judgment’ of the Full Bench of the Madras High  Court in Kanchamalai Pathar v. Ry.  Shahaji Rajah  Saheb & 5  Ors. (1).  It is necessary to refer to the relevant facts in that case  in order to appreciate the point which was decided  by the  Full  Bench.  In execution of a  money  decree  certain immovable property belonging to the judgment-debtor had been attached,  A  proclamation of sale was then settled  and  an order  passed for sale.  At that stage  the  judgment-debtor died.   The  decree-holder and his vakil were aware  of  the death of the judgment-debtor, but even so no application was made under s. 50 of the Code of Civil Procedure for leave to execute  the decree ,,against the legal  representatives  of the deceased Judgment-debtor, and so no notice -",as  served as  required by O. XXI, r. 22, sub-r.(1). The sale was  then held  and  at  the  sale the property  was  purchased  by  a stranger.  A question then arose as to whether the sale  was void  or voidable and the Full Bench held that it was  void. Before  the  Full  Bench it was contended  that  s.  50  bad reference  only  to the stage when it  became  necessary  to apply  for execution against the legal representatives ;  it did  not apply to a case where the  judgment-debtor  himself was  alive when the attachment was made.  The  argument  was that once the attachment was made the property attached  was custodia  legis  and  the liability then was  that  of.  the property  and not that of the person.  That is how,  failure to bring the legal representatives on the record UDder s. 50 or to apply for and obtain notice under 0. XXI, r. 22,  sub- r. (1) (1)  (1936) I. L. R. 59 Mad. 461. 406 was   attempted  to  be  explained.   This  contention   was negatived.   It  is in the context of  this  contention  and while  rejecting it that Varadachari, J., observed  that  on the death of a person proceedings for recovery of a debt due by him or taken only against his estate and not against  his legal  representative do not seem to be justified either  by legal  history  or by the language of  the  Procedure  Code. Similarly, in the same context and while rejecting the  said argument  Venkataramana Rao, J., observed that as soon as  a man dies he disappears from the record and there is no party over  whom the Court can exercise jurisdiction and it  loses jurisdiction  in  one of its essentials.  Then  the  learned judge  has  added  that no, decree  can  be  passed  without

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bringing  his  representative on the record.   After  he  is brought  he  becomes  the defendant.   Similarly  after  the decree he becomes judgment-debtor.  It would be noticed that these  observations on which the High Court has relied  must be read in the context of the facts before the Court in that case,  and their effect must be appreciated in the light  of the argument which was rejected.  The Full Bench was  really concerned to decide whether in regard to     property  which had been attached in execution of  a   decree    proceedings under s. 50 and under O. XXI,  r. 22, sub-r. (1) have to  be taken  or not, and it has held that when  a  judgment-debtor dies  no action can be taken against his estate  unless  his legal representative is brought on the record and orders are then passed against the assets of the deceased in his hands. In  our  opinion, therefore, the observations made  in  that case cannot pressed into service when we are dealing with  a very different problem. The same comment, with respect, falls to be made with regard to  similar observations made by Ranade, J. in Erava &  Anr. v.  Sidramapa  Pasare(1).  In that case a  mortgagee  H  had obtained (1)  (1897) I.L.R. 21 Bom. 424.                             407 a decree against the mortgagor N but before the decree could be  executed  N  died leaving behind him as  his  heirs  his daughters.    Subsequently  the  decreeholder  applied   for execution  against the deceased judgment-debtor by his  heir and  nephew  R. R appeared and pleaded that he was  not  the heir  and that the daughters of N were his heirs.   Even  so the   daughters   were  not  impleaded  to   the   execution proceedings nor were notices served on them under s. 248  of the Code (Act X of 1877).  Ultimately the property was  sold and was bought by the decree holder subject to his mortgage. In   due  course  the  sale  was  confirmed  and  the   sale certificate  issued.   The  daughters of  N  then  sued  the mortgagee for redemption and were met with a plea that since the  defendant bad purchased the property at court  sale  he was entitled to it free from the claim of the plaintiffs  to redeem.  This defence was rejected by the High Court.  Candy and  Jardine, JJ. based their conclusion on the ground  that even  if the auction purchaser got an absolute title to  the property  the  present suit had been brought  within  twelve years of the sale and did challenge it and so the plaintiffs are entitled to redeem.  Ranade, J., however, based  himself on  the  ground  that the sale  proceedings  were  null  and invalid  and  without jurisdiction because  the  true  legal representatives of N had not been brought on the record.  It is  in this connection that he rejected the argument of  the auction purchaser that the auction sale affected the  estate of  the deceased N only and that it was a  mere  informality that the true heirs’ names were not joined in the record  in execution proceedings.  In other words, according to Ranade, J., execution proceedings could not properly and validly  be continued  after  the death of N unless his true  heirs  and legal  representatives  were brought on the record.   It  is thus  clear that the problem posed before the High Court  in that  case  was very much different from  the  problem  with which  we  are concerned in the present appeal, and  so  the observations 408 made  in  that  case  cannot be of  any  assistance  to  the respondents   in  support  of  their  contention  that   the Hyderabad  Court ceased to have      jurisdiction  over  the suit  because  on  the death of Raja  Bahadur  his    legal representatives     were     non-resident foreigners.

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Going back to the narrow point which calls for our  decision in the present appeal we are inclined to hold that there  is no  scope  for  the  application  of  the  rule  of  private international  law  to a case where the  suit  as  initially filed was competent and the Court before which it was  filed had  jurisdiction to try it.  In such a case if one  of  the defendants  dies and his legal representatives happen to  be non-resident  foreigners the procedural step taken to  bring them on the record is intended to enable them to defend  the suit  in  their character as legal  representatives  and  on behalf of the deceased defendant and so the jurisdiction  of the  Court  continues unaffected and the competence  of  the suit as originally filed remains unimpaired.  In form it  is a  personal action against the legal representatives but  in substance  it is an action continued against them  as  legal representatives  in which the extent of their  liability  is ultimately  decided  by  the extent of  the  assets  of  the deceased  as held by them.  Therefore we must hold that  the High  Court  was in error in reversing the  finding  of  the trial  court  on the question about the  competence  of  the Hyderabad  Court to try the two suits filed before  it.   In this view it is unnecessary to consider whether some of  the legal representatives had- submitted to the jurisdiction  of the Hyderabad Court or not. That takes us to the other argument raised by Mr. Viswanatha Sastri  on  behalf  of the respondents.   He  contends  that respondents  2  to  12 who are in  possession  of  different pieces  of property belonging to the deceased  Raja  Bahadur under the will executed by’ him cannot be ’said to be his                             409 legal  representative under s. 2(11) of the Code.    Section 2(1) provides, inter alia that a 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.   It  is  well  known  that   the expression "legal representative" had not been define in the code  of  1882  and that led to  a  difference  of  judicial opinion  as to its denotation.  In Dinamoni  Chaudhurani  v. Elahandut  Khan (1) the Calcutta High Court had occasion  to consider  these conflicting decisions.  It was urged  before the High Court that the term "legal representative" used  in s.234  of  the said Code had to be  construed  strictly  and could  not include anybody except the heir, executor or  the administrator  of the deceased.  The argument was  that  the term had been taken from the English law and its scope could not  be extended.  This argument was rejected by  Brett  and Woodroffe, JJ.  Woodroffe, J. examined the several  judicial decisions  bearing  on  the point and  observed  "from  this review  of  the  authorities it will  appear  that  judicial decisions  have  extended  the  sense  of  the  term   legal representative"  beyond  that of its ordinarily  meaning  of "administrator, executor and heir" and though such extension has been attended with doubt and has in some cases been  the subject  of conflicting decision it appears to me to be  too late  now  to endeavour, however convenient it might  be  to secure  for  the term that which is perhaps its  strict  and legitimate  sense.  I agree there fore, in holding that  the term is not limited to administrators, executors, and  heirs and  am of opinion that it must now be held to  include  any person  who  in  law represents the  estate  of  a  deceased judgment-debtor".  It would be relevant to observe that  the view  thus expressed by Woodruffe, J. has been, embodied  in the  present  definition  of "legal  representative"  by  s. 2(11). (1)  (1904) 8 C.W.N. 843.

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410 Mr.  Sastri  concedes that a universal legatee  would  be  a legal  representative  and he does not  challenge  that  the person  who intermeddles even with a part of the  estate  of the  deceased  is  also  a  legal  representative;  but  his argument  is that a legatee who obtains only. a part of  the estate  of  the  deceased under a will  cannot  be  said  to represent   his  estate  and  is  therefore  not   a   legal representative under s. 2(11).  We are not impressed by this argument.   The  whole object of widening the scope  of  the expression   "legal   representative"  which   the   present definition is intended to achieve would be frustrated if  it is held that legatees of different portions of the estate of a deceased do not fall within its purview.  Logically it  is difficult to understand how such a contention is  consistent with the admitted position that person who intermeddle  with a part of the estate are legal a representatives.   Besides, if  such a construction is accepted it would be so easy  for the estate of a deceased to escape its legitimate  liability to  pay  the debts of a deceased debtor only if  the  debtor takes the precaution of making several legacies to different persons by his will.  Besides, as a matter of  construction, if   different  intermeddlers  can  represent   the   estate different legatees can likewise represent it.  In regard  to the intermeddlers they are said to represent the estate even though  they are in possession of parcels of the  estate  of the  deceased  and  so there should  be,  no  difficulty  in holding that the clause "a person who in law represents  the ’estate  of a deceased person" must include different  lega- tees under the will.  There is no justification for  holding that the "Estate" in the context must mean the whole of  the estate.    Therefore,  we  are  satisfied  that  the   plain construction  of s. 2(11) is against Mr. Sastri’s  argument, apart from the fact that considerations of logic and  common sense are equally against it. In  support of his argument Mr. Sastri has referred us to  a decision of the Madras High Court                             411 in  Natesa Sastrigal v. Alamelu Achi (1).  In that case  the Madras  High Court no doubt seems to have observed  that  s. 2(11) does not include legatees of part of the estate.  With respect,  we think the said observation does  not  represent the correct view about the interpretation of a. 2(11). We  accordingly hold that the foreign judgments in  the  two suits  pronounced by the City Civil Court at  Hyderabad  are judgments  pronounced by a Court of competent  jurisdiction, and  so the defence raised by respondents 2 to 12 under  s. 13(1) must fail.  We have also held that respondents 2 to 12 are  the legal representatives of the deceased Raja  Bahadur and  so  it  follows that the estate of  the  deceased  Raja Bahadur  was sufficiently represented by them when the  said judgments were pronounced. In the result the appeal must be allowed, the decrees passed by  the  High Court in the two appeal Nos. 172 and-  194  of 1947  must  be reversed and the decree of  the  trial  court passed  in  Civil Suit No. 83 of 1945  restored  with  costs throughout. Appeal allowed. (1)  [1950] 1 M. L. J. 476. 412