Ameer Ali, J.
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 11th April 1927 the executors in question of the Will of Thakurdas Ker made a mortgage purporting to mortgage as executors. On 31st January 1929 the suit on the mortgage was filed (the suit in which this application is made) being Suit No. 254 of 1929. On 5th July 1929 the usual preliminary mortgage decree was passed. On 31st 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 18th 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 9th 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 25th 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 28th November 1935 Kusum Kumari applied for stay of the sale of the mortgaged premises. Her application was dismissed, and on 30th 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 7th April 1936 and on 26th 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 18th 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.
4. In my opinion it is not necessary to consider the question of res judicata and no such question really arises on this application. That decision is still under appeal and therefore there has been no final decision. The question of res judicata is this. Whether that question can be raised in proceeding other than the suit which is now under appeal, that is to say, whether it is constructively included in that suit and cannot be raised, for instance in the suit brought by Kusum Kumari. In my opinion no question of res judicata affects the present application. Mr. S.R. Das for the widow and Dr. Roy for the grandsons, except for the first ground I am about to mention urge the following points: The first point, that Kusum Kumari as a Hindu widow claims a right of residence de hors the will. That claim however does not appear to have been put forward in her suit, or indeed, in the grounds put forward by her on this application. Secondly, that they have a right of residence under the will the right of residence being a specific legacy which was assented to by the executors. That their rights are therefore de hors the estate. Thirdly, even if they be regarded as ordinary beneficiaries they rely upon the fact that their rights so based are still the subject matter of appeal to the Privy Council and they argue, alternatively, even if the decree be binding it is only binding subject to their right of residence. And lastly they contend that at any rate their claim to possession is bona fide.
5. Mr. Das referred to a case in D. E D.J. Ezra v. J.E. Gubbay AIR 1920 Cal 706 at p. 912 where, the question of the meaning of this phrase is discussed by Rankin, J. The question however to my mind depends upon the terms of the Code and the question which interested me during the application was this: whether the beneficiaries in this case can be regarded as coming under the words 'judgment-debtor or persons claiming under the judgment-debtor'. Beneficiaries do not claim under executors and so far as judgment-debtor is concerned there is a definition in Section 2 which excludes them. Order 21, Rule 35 is sufficient to eject any person bound by the decree', those are the words used. They are bound by the decree but they are bound by a mortgage decree not a decree for possession. They do not therefore come under Order 21, Rule 35. There is a further provision which was not referred to by counsel on either side, apparently, introduced after the judgment of Rankin, J. in D. E D.J. Ezra v. J.E. Gubbay AIR 1920 Cal 706. Section 146 of the Code:
Where any proceeding may be taken or application made by or against any person then the proceeding may be taken or application may be made by or against any person claiming under him.
6. But again, and I think I have already indicated my view, that beneficiaries cannot be registered as 'claiming under' the executors. Section 146 therefore does not apply to the case of beneficiaries. The logic of the matter appears to me to be the following: Apart from special circumstances the beneficiaries are bound by the decree. This would bring them under Order 21, Rule 35. If the suit brought was a suit for possession it does not bring them under Order 21, Rule 95. The point is this: that the decree has been made and the decree-holders' rights exhausted. This is an application by the purchaser and his rights are entirely governed by Rule 95 onwards. The rules as Rankin, J. pointed out are not perfectly drawn; the antithesis in one section does not correspond in all cases with antithesis in the other, but I think it is clear that unless a person has a decree for possession in his favour he can only eject the actual judgment-debtor. With regard to the question of instigation, that must be a question of influence in each case. In my opinion the respondents here cannot, within the meaning of the section, be held to be in occupation at the instigation of the judgment-debtor. I have not been able to discover the English Rules dealing with the point of law or to see whether there is any difference in the principle embodied in them. It seems therefore that the unfortunate purchaser has to file a separate suit and cannot rely upon the summary procedure. No order as to costs.