GOBINDA BALLAV CHAKRABORTY Vs. BISWANATH MUSTAFI

JUDGEMENT

(1.) Appeal against the Order of Sri S. K. Mukherjee, Additional District Judge of Second Court at Alipore in Misc. Appeal No. 262 of 1975, dated the 25th day of March 1976, reversing the order of Sri H. Banerjee, Munsiff, First Court at Sealdah, dated the 31st day of March, 1975.

(2.) This appeal arises out of the judgment dated 25th of March, 1976, passed by the learned Additional District Judge, Second Court, Alipore, in Misc. Appeal No. 262 of 1975, reversing the Judgment and order being Order No. 35 dated 31st of March, 1975, passed by the learned Munsif, First Court, Sealdah, in Misc. Case No. 217 of 1974.

(3.) It appears that Title Suit No. 208 of 1966, of the 1st Court of the learned Munsif at Sealdah was decreed and the said decree was put to execution. In the said execution proceeding, an objection under Section 47 of the Code of Civil Procedure was made by the judgment-debtor respondent Biswanath Mustafi inter alia contending that the decree passed in the said Title Suit was a nullity and as such the decree was not executable. It appears that the said suit was initially instituted by one Bina Pani Debi against the said judgment-debtor. During the pendency of the said suit the said Bina Pani died and the appellants Suhasis Chandra Haldar and Gobinda Ballav Chakraborty made an application for being substituted as legal representatives of the said deceased plaintiff in the said suit on the allegation that the said plaintiff had died and she had also left a will by which the said Sri Suhasis Chandra Haldar and Gobinda Ballav Chakraborty were made executors to the estate of the said deceased Bina Pani Debi. It appears that the learned Subordinate Judge allowed the said application for substitution and the said Sri Haldar and Sri Chakraborty were substituted as plaintiffs in place of the original plaintiff Bina Pani Debi, since deceased. It is an admitted position that during the pendency of the said suit the said will of Bina Pani Debi was not probated and after the passing of the decree in the said Title Suit No. 208 of 1966, the will was probated on contest and the said Sri Suhasis Chandra Haldar and Sri Gobinda Ballav Chakraborty were adjudged as executors to the said will. It was contended before the learned munsif that so long the will was not probated the said Sri Suhasis Chandra Haldar and Sri Gobinda Ballav Chakraborty could not have been impleaded as executors to the will of the deceased Bina Pani Debi and as such, they had not the capacity to represent the estate of the said Bina Pani Debi. Accordingly, the decree passed in their favour on the footing that they were the legal representatives of the original plaintiff Bina Pani Debi was illegal and consequently the execution in terms of the said decree was not maintainable. It appears that the learned Munsif was of the view that the decree in question was not a nullity and accordingly the said Misc. case was dismissed by the learned Munsif. The judgment-debtor, thereafter, preferred an appeal being Misc. Appeal No. 262 of 1975 of the Second Court of the learned Additional District Judge, Alipore but it appears that the learned Additional District Judge allowed the said appeal and held that an executor could not represent the estate in a suit or proceeding until probate has been obtained by him and although institution of a suit ipso facto may not be illegal but if before passing of the decree, the will is not probated then under Section 213 of the Indian Succession Act, an executor is not competent to obtain a decree in any suit brought by him as executor. Accordingly, the decree passed in the suit in question was a nullity and the execution proceeding was not maintainable. Being aggrieved by the said adjudication made by the learned Additional District Judge the decree-holders have preferred the instant appeal.