PROMOTHA NATH DUTTA Vs. GOUR DAS MAHATO

JUDGEMENT

(1.) THIS is a petition under Section 115, Civil P.C., by an executor of an estate of which the opposite party is the shebait or legatee. There was a protracted litigation between the opposite party and the petitioner on the one side and other persons on the other side respecting the property and the petitioner's ease is that he has paid more than Rs. 600 from his private purse for costs in this litigation and under direction of the District Judge he submitted an account; of his receipts and expenses as executor. The District Judge asked a Court officer to examine the account and the Court officer disallowed the litigation cost on the ground that it was not spent on Devaseva. The District Judge on reading his Head Clerk's report directed on 27 August 1936 that the petitioner should deposit in Court Rs. 594 odd for having spent the sum for purposes other than Davaseva. The petitioner filed an objection petition to the District Judge stating that he had spent the money on litigation, that the most the District Judge could direct him was to repay a sum of Rs. 246.13-0 costs deposited by a third party which ha had withdrawn from Court. Thereupon, on 3 October 1936, in modification of the previous order, the learned District Judge ordered the petitioner to deposit in Court the sum of Rs. 216-13-0. It is urged in this Court that the order passed by the learned District Judge directing the deposit is without jurisdiction, that the executor is not a receiver of the Court whose accounts may be checked by the District Judge himself or by an officer and that he cannot be directed to pay any sum into Court. The case in Khetter Mohan V/s. Saromoni Dasi (1910) 12 CLJ 602 is quoted in support of this proposition.

(2.) ON the other side, it is urged that the petitioner by his own petition on 1 October consented to repay to Court a sum of Rs. 246 odd and he cannot now resile from it. To this, the answer is that the petitioner was afraid of the action of the Court and stated that the most the Courts mould ask him was to repay the sum which he had withdrawn, but such admission could not bind him inasmuch as the District Judge had no jurisdiction to order him to repay any money to Court. Upon hearing both sides, it appears that the beneficiary of this estate thinks that the petitioner executor has been misappropriating money and submitting untrue accounts to the District Judge. If that be the position, it is open to the opposite party to apply to the Court under Section 263 (e) to revoke the grant of probate to the petitioner on the ground that he has exhibited an account which is untrue in a material respect. It is also to be noted that under Section 321 the executor is entitled to take from the estate the costs of a litigation in which he was engaged to protect the estate. The Rule is made absolute. The order of the District Judge directing the petitioner to pay any money is set aside. Having regard to the circumstances of this case, parties will bear their own costs in this Court.