Basil Scott, C.J.
1. This is an appeal by an attaching creditor from an order passed on a Chamber summons whereby an attachment levied upon a certain house was raised.
2. The material facts are as follows:
On the 14th of April 1903, Dossabhoy Rustomji Mistri died leaving a will whereby he appointed Byramji Rustomji Mistri, his brother, and Heerabai, his widow (respectively appellant and respondent in this appeal), his executor and executrix.
3. At the time of his death he was indebted to Jehangir B. Mistri in the sum of Rs. 1,000.
4. The executor and executrix named in the will obtained probate in August 1903 and on the 27th of September 1903 borrowed Rs. 1,000 from Soonabai, widow of Rustomj Jivanji Mistri and mother of the testator, and on the same day with the sum so raised they paid off the debt due to Jehangir B. Mistry.
5. Early in 1906, Ruttonbai, the daughter of the deceased, filed suit No. 110 of 1906 in this Court for administration of her father's estate in order to get payment of a legacy in her favour of Rs. 2,000.
6. While the suit was pending Soonabai, the mother of the deceased, filed suit No. 406/18028 of 1906 in the Small Cause Court against the appellant and respondent as executor and executrix of the deceased to obtain repayment of the sum of Rs. 1,000 advanced to them on the 27th of September 1903. This suit came on for hearing before the Chief Judge of the Small Cause Court on the 28th of September 1906. What took place on that occasion appears from the Judge's Note which is in the following terms:
Ardeshir N. for plaintiff claims a decree against the estate of the deceased.
Mr. Dastur for 1st defendant admits note passed as executor.
Mr. Ghandhy for 2nd defendant.
Rs. 1,000 were due by the testator to Jehangir Bomanji Mistri and to pay that this money was borrowed. Ghandhy says if the decree is sought against the estate and not the executrix personally the suit may be stayed or execution, as there is an administration suit filed by 1st defendant's daughter in the High Court Bai Meherbai v. Maganchand Motiji 29 B. 96: 6 Bom. L.R. 853.
He also admits the claim as against the estate. By consent. Verdict for Rs. 1,175 and costs against the estate of the late Dossabhai Rustomji Mistri deceased.
Execution stayed till 15th November.
7. On the 21st of November 1906, Soonabai applied for execution of her so called decree against the estate and asked that it should be transferred to the High Court for execution against the immovable property of the testator situated in Bomanji Lane. In May 1907 Soonabai died leaving a will whereby the appellant was appointed executor. At the time of her death no limit of allotment had been issued.
8. On the 8th of July 1907, a decree was passed in Ruttonbai's suit giving directions as to the fund from which her legacy should be paid and referring it to the Commissioner to take various accounts' including those usual in administration suits.
9. On the 29th of July 1907, the appellant obtained probate of Soonabai's will. On the 6th of September 1907, he obtained in execution of the Small Cause Court decree a writ of attachment of the house in Bomanji Lane which had, by the will of the testator, been specifically bequeathed to the respondent.
10. The attached property was in due course advertised for sale and the respondent then took out this summons to stop the sale and raise the attachment.
11. The summons was made absolute with costs; the learned Judge in Chambers holding that as the estate of Dossabhoy was being administered by the Court under the decretal order of the 9th of. July 1907, Soonabai's executor should have entered his claim in the administration proceedings and was not entitled to attach the property which was being administered.
12. For the appellant it has been contended that this decision is based upon a misconception of what had occurred in the administration suit and that in fact there had been no decree, but a mere order for account and, therefore, no creditor could be prevented from enforcing his decree by execution against the property of the deceased. The argument was based upon the ruling of North, J., in In Re: Barrett (1889) 43 Ch.D. 70, that a mere order for accounts without any decree for administration did not prevent an executrix from preferring one creditor to another. I do not agree that there has been no decree in suit No. 11.0 of 1900, but assuming there has been none the ruling in In Re: Barrett (1889) 43 Ch.D. 70 would still be inapplicable in this country where, as provided by Section 282 of the Succession Act to which the parties to this summons are subject, no creditor is to have a right of priority over another on any account and the executor must pay all such debts as ho knows of equally and rateably as far as the assets of the deceased will extend. See Meherbai v. Maganchand 29 B. 96. 100 : 6 Bom. L.R. 853.
13. This case must, I think, be determined by reference to the arrangement come to in the Small Cause Court. It is clear that on a claim for money lent to the executors they are liable personally and a judgment cannot be directed against the assets of the testator. Sec Farhall v. Farhall (1871) L.R. 7 Ch. 123. The Judge of the Small Cause Court was prohibited by Section 19 of the Presidency Small Cause Court Act from passing a decree for administration and the facts of the case precluded such a decree as is contemplated in Section 252 of the Code of Civil Procedure, 1882.
14. In my opinion the arrangement come to in the Small Cause Court was that on the claim being admitted the plaintiff agreed to seek her remedy in the administration suit which was then pending. This she could do since the executors had the right to stand in the place of the discharged creditor in the taking of the accounts. See Jones v. Jukes (1794) 2 Ves 518 and upon the same principle Soonabai could stand in their place.
15. Having regard to the above agreement the order raising the attachment must stand and the appeal must be dismissed with costs.
16. I am of the same opinion. To allow the appellant's contention to prevail would be to upset the terms of the decree of the Small Cause Court, which, as has been pointed out, Soonabai was competent to, and did, consent to.