KALI KRISHNA SARKAR Vs. RAGHUNATH DEB

JUDGEMENT

(1.) Killa Patia is an impartible estate in Orissa. The Baj family is governed by the Mitakshara law. Raja Dibya Singh was lately the proprietor. He mortgaged a part of the estate to the present appellant. The appellant got a decree on the mortgage on the 29 August 1895, caused a sale of the mortgaged property, and succeeded in realising a portion of the debt. For the balance he applied under Section 90 of the Transfer of Property Act and obtained a personal decree against the mortgagor Raja Dibya Singh. Raja Dibya Singh died and the Raj came to be in the possession of his brother, Sri Raja Raghunath, the present respondent. Raja Dibya Singh left him surviving a widow and a daughter; but as the family Vas governed by the Mitakshara law, they were superseded by the surviving brother, as the property was ancestral.

(2.) The application for execution out of which the present appeal has arisen was presented on the 14 May 1902, and by it the decree-holder sought to levy execution by sale of the Raj properties now in the possession of Raja Raghunath. The latter contested the right of the decree-holder on the ground that he was not the legal representative of the deceased debtor, and that he came into possession of the estate and effects which had been in possession of the deceased by right of survivorship according to Mitakshara law.

(3.) The Subordinate Judge accepted these contentions and dismissed the application for execution, and hence this appeal by the decree-holder.