PRABHAS CHUNDER MULLICK Vs. DHIRENDRA NATH KER

JUDGEMENT

(1.) This is an application under Order 21, Rule 97, Civil P.C., and it raises a point which I should have thought would have been covered by authority. The point is this: Where a mortgage decree has been obtained against executors in their representative capacity and there has been a decree for sale and sale held, can the purchaser by proceeding under Rr. 95 and 97 obtain possession as against the beneficiaries under the will, that is to say the beneficiaries entitled to the estate which is represented by the executors. Apparently, the answer is no. The short facts are as follows:

(2.) On 11 April 1927 the executors in question of the Will of Thakurdas Ker made a mortgage purporting to mortgage as executors. On 31 January 1929 the suit on the mortgage was filed (the suit in which this application is made) being Suit No. 254 of 1929. On 5 July 1929 the usual preliminary mortgage decree was passed. On 31 August 1929 a suit was filed by three grandsons of the testator being Suit No. 1838 of 1929 for administration and for a declaration that various transactions by the executors including this mortgage were not binding on the estate. The two executors I should have said were the two elder sons of Thakurdas Ker. On 18 August 1930 was made the final decree in the mortgage suit. On 15th February 1932 the suit filed by the grandsons was heard by me and so far as matters in issue are concerned was dismissed, that is to say, I held the mortgage to be valid. There was an appeal on 9 December 1934. The appeal too was dismissed. There was however a further appeal which is still pending to the Judicial Committee. The question at issue depending as it does on the construction of a somewhat peculiar will was by no means simple, i.e., one upon which it is possible to take different views. There are however two decisions in favour of the mortgagee. On 25 November 1935 the widow of Thakurdas Ker, the testator, filed a suit of her own being Suit No. 1987 of 1935 basing her claim inter alia upon her right of residence given by the will. On 28 November 1935 Kusum Kumari applied for stay of the sale of the mortgaged premises. Her application was dismissed, and on 30 November 1935 the executors of the mortgagee, that is, of Indira Debi, purchased the property for Rs. 46,000. At that sale a notice was read on behalf of Kusum Kumari stating her claim.

(3.) The purchasers obtained a sale certificate on 7 April 1936 and on 26 June 1936 obtained an order under Order 21, Rule 95 against the actual defendants, the executors, and the other persons who are now respondents to the application, the grandsons and Kusum Kumari. On 18 August 1936 this petition was filed for an order of evictment under Order 21, Rule 97. Why the matter has been so long pending, I do not know. The position taken up by the decree-holders is as follows: That a decree against the executors, other things being equal, binds the beneficiaries. The beneficiaries who claim under the will are therefore bound by the decree, bound by it as much as the executors. Further, that even if they can be regarded as distinct, their claim to possession in this case is not bona fide both because they have unsuccessfully resisted the decree in the suit which was brought by them and which was dismissed in this Court, and further because the additional ground now urged by them of right to residence is res judicata being a matter which they could and should have raised in that suit. I refer to the administration suit.