1. The appellant filed the suit out of which this appeal arises for the administration of the estate of one Narayana Aiyar, who died in 1934, leaving a widow, the first respondent. Soon after the death of Narayana Aiyar, the first respondent executed a trust deed in favour of one Srinivasa Aiyar, an advocate of Trichinopoly town constituting him a trustee to sell the properties and to clear the debts of the deceased. Respondents 2 to 6 and 11 are some of the alienees either from the trustee or from the widow direct. These alienations are attacked as being nominal and fraudulent transactions and the suit is for the administration of 'the entire estate by the Court. Both the Courts found that all the alienations complained of were properly effected for a proper price in order to discharge the debts of the husband Narayana Aiyar. Both the Courts therefore held that all the alienations are valid and binding on the estate of the deceased Narayana Aiyar. There is no reason to differ from the findings of both the lower Courts on these points. The circumstances attending on each alienation are fully set out in the judgment of the trial Court. In appeal the question whether the alienations in favour of respondents 3 to 6 are binding was practically given up. One alienation in favour of the eleventh respondent was seriously questioned and the Subordinate Judge found that that alienation was binding as well. Having gone through the findings and the circumstances of each alienation I hold that the various alienations are binding on the estate and on the plaintiff.
2. The plaintiff is a money decree-holder who filed a suit against the first defendant in the year 1935. He obtained a decree against the assets of the deceased in the hands of the first defendant. Instead of proceeding to execute the decree he filed the present suit to have the estate administered on the ground that the heir-at-law is wasting the property and has not administered the property as she ought to have done. Both the lower Courts held that under the circumstances of this case there is no justification for the plaintiff filing this action and that the estate need not be administered by the Court. It is argued by the appellant that every creditor has got a right of having the estate of an intestate administered by the Court and relies upon a decision of this Court in Rajah of Kalahasti v. Venkatappa Nayanim Bahadur : AIR1928Mad713 Reliance is placed upon the observations of Srinivasa Aiyangar, J., in that judgment. The learned Judge pointed out that the creditor of a deceased has two remedies; one to file a suit against the heir-at-law or the executor for a decree against the assets of the deceased in the hands of the heir-at-law which is the smaller remedy. It was pointed out that there is also another remedy, that is, by way of an administration action. But the question is, assuming that a creditor has got both the remedies, if he files a suit and obtains a decree against the heir-at-law to the extent of the assets of the deceased in his hands, is he entitled to file an administration action and to insist upon the Court administering the estate? In this connection it is to be remembered that the Court is not bound in every case to administer the estate as pointed out in Kissondas v. Jivatlal Pratapshi & Co : AIR1936Bom423 It is clear on the authority that the Court is not bound to make an order for the administration of the estate when the question between the parties can be properly determined without such an order. The order may be refused even if the testator has directed the executor to take proceedings to have the estate administered by the Court. The law is laid down in these terms in 14 Hailsham 445, para. 849:
It is not obligatory upon the Court to order administration of the estate where the question between the parties can be properly determined without an administration order, even though the plaintiff be an infant or though the testator has directed his executors to take proceedings to have the estate administered by the Court.
In the present case the plaintiff's complaint is that the first defendant, the heir-at-law against whom he has obtained a decree has wasted several of the properties by effecting alienations of several portions of the estate in favour of near relations which are really not binding on the creditors.
3. As I said before, all these alienations have been found to be valid and binding on the estate. Even apart from this finding, under Section 52 (2) of the Code of Civil Procedure the plaintiff can get all the remedy that he wants by merely filing an application in execution of his decree. Section 52 (2) specifically provides for the very contingency which is complained of by the appellant. Section 52 (1) and (2) runs thus:
(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.
(2) When no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied sued property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which ho has failed so to satisfy the Court in the same manner as if the decree had been Against him personally.
Thus under Clause (2) where no property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied the property of the deceased which is proved to have come into his possession, the decree may be executed against the judgment-debtor personally to the extent to which he has failed to satisfy the Court in the same manner as if the decree had been against him personally. If in execution of his decree the appellant files an application under S,. 52 (2) and satisfied the Court that the first respondent came into possession of some property and the first respondent fails to satisfy the Court that she administered the estate properly and to account for all the property, the decree may be executed against her personally.
4. Further it is doubtful whether a creditor who has obtained a decree is entitled to file another action which in substance is really for the recovery of his debt. Though in form an administration action, his object is not so much to benefit the other creditors but to benefit himself and recover his debt in full. He has already filed a suit and obtained a decree. Why then should he come to Court by means of another action styled an administration action and seek recovery of his debt in this action? He has already obtained a decree for the recovery of his debt. He has only to attach a portion of the estate of the deceased and to proceed to sell it. Instead of attaching a sufficient portion of the estate of the deceased which it is his duty to do, if he files a separate suit, it looks as if Section 47 may be a bar. There is authority for this position in the decision of the Calcutta High Court in Jogemaya Dassi v. Thackomani Dassi I.L.R.(1896) Cal. 473. But whether it is so or not, I am satisfied that the appellant's action must fail on the other ground that the Court is not bound to order an administration in a case where there are no circumstances calling for such action. In this case the plaintiff could well have attached all the properties immediately after he obtained his decree in 1935. He did nothing of the kind and if instead of proceeding in execution of his decree he chooses to file an administrative action, the Courts are not bound to take up the administration of the estate on their shoulders. In this case both the lower Courts have found that under the circumstances of this case the non-completion of the administration by the trustee was due to the plaintiff's own default in not carrying out the terms of the sale deed under which he purchased some property for which in addition to the amount of his decree he undertook to pay a further sum which he failed to pay. In the result the second appeal fails and is dismissed with costs of the contesting respondents 2 to 6 one set, to be divided among them.