PRABHATNATH DAS Vs. RAMENDRAKUMAR SKAHA

JUDGEMENT

(1.) The facts which gave rise to these two appeals are as follows:

(2.) One Ramsundar executed a mortgage bond in favour of Udaychandra Das borrowing Rs. 250 with interest at the rate of 2 per cent per month. There was also a stipulation for compound interest. On 15 November 1928, Uday's son, Mahendra, the sole appellant in S.A. 184 of 1933 and one of the appellants in M.A. 477 of 1932, instituted a suit on the mortgage- bond against the heirs of Ramsundar for recovery of Rs. 1,200 as executor to the will left by his father Uday after the death of Uday. At the time of the institution of the suit Mahendra did not institute any proceeding for getting a probate of the will of his father.

(3.) During the pendency of the suit however he applied for probate and was appointed administrator pendente lite under Section 247, Succession Act. Thereafter he prosecuted the mortgage suit as administrator pendente lite and obtained a mortgage decree on 9 January 1931. The plaintiff's claim for a personal decree for realization of the balance, if any, that may remain unrealized from the sale proceeds, was however dismissed. Thereupon, the defendants filed an appeal to the lower appellate Court on 23 March 1931, impleading the appellant, Mahendra, as the sole respondent in the appeal. The application for probate however was dismissed on 2 April, 1932 only on the ground that the appellant could not pay the probate duty. On 10 May 1932, an application was filed by the heirs of Uday for being substituted as respondents in place of Mahendra, on the ground that the probate of the will left by Uday was not taken out. This application was rejected by the lower appellate Court on 21 May 1932. On 27 May 1932, the heirs of Uday filed an application for staying the hearing of the appeal to enable them to file an appeal against the said order to this Court and to get an order for staying the hearing of the appeal from this Court. This application was however refused. The appeal was thereafter heard by the learned Judge and the suit was dismissed. M.A. 477 of 1932 is by the heirs of Uday against the order dated 21 May 1932 and S.A. 181 of 1933 is by Mahendra as executor, who has now ceased to be the administrator pendente lite, against the order dismissing the suit.