1. In this appeal, which arises out of certain proceedings taken in execution of a mortgage decree, the only question raised on behalf of the appellant who was defendant No. 7 in the Court below, and was made a defendant as being the purchaser of a portion of the mortgaged property, is, whether Section 4 of the Succession Certificate Act is a bar to the execution proceedings which were instituted upon the application of the original mortgagee, by reason of the original mortgagee having died during the pendency of the proceedings and his legal representatives who were substituted in his place not having produced any succession certificate.
2. The learned Vakil for the appellant very fairly admits that the weight of authority in this Court is apparently against his contention, but he seeks to distinguish the cases bearing upon the point, viz., Roghu Nath Shaha v. Poresh Nath Pundari (1887) I.L.R., 15 Cal., 54; Kanchan Modi v. Baij Nath Singh (1892) I.L.R., 19 Cal., 336, and Baid Nath Das v. Shamanand Das (1894) I.L.R., 22 Cal., 143, from the present on the ground that in none of those cases was any personal decree against the mortgagor asked for, whereas in this case such a decree was asked for and has been granted; and he relies upon the case of Fateh Chand v. Muhammad Baksh (1894) I.L.R., 16 All., 259, decided by a Full Bench of the Allahabad High Court, in support of his contention.
3. So far as the distinction sought to be drawn between the present case and the cases decided in this Court bearing upon the point now before us goes, it would be sufficient to say that the only defendant against whom a personal decree has been granted is defendant No. 1, and he is not one of the appellants before us, nor indeed did he raise any objection in the Court below to the execution proceedings; and as against the defendant No. 7 the appellant before us, the only decree made is not a personal decree, but a decree allowing the mortgagee to proceed against the mortgaged property in his hands; so that, as far as the appellant is concerned, the ease is governed by the principle laid down in the cases of Roghu Nath Shaha v. Poresh Nath Pundari (1887) I.L.R., 15 Cal., 54; Kanchan Modi v. Baij Nath Singh (1892) I.L.R., 19 Cal., 336; and Baid Nath Das v. Shamanand Das (1894) I.L.R., 22 Cal., 143. We agree with the view taken in those cases and respectfully dissent from that taken by the Allahabad High Court in the case of Fateh Chand v. Muhammad Baksh (1894) I.L.R., 16 All., 259.
4. But there is another reason why we think that the contention of the appellant in this case should fail, and that is this, that Section 4, Sub-section 1, Clause (b), which is the only provision of the Succession Certificate Act under which the case could possibly come, can have no application to the present case. For that clause provides that no Court shall 'proceed upon the application of a person claiming to be entitled to the effects of a deceased person' to execute against a debtor of such deceased person a decree or order for the payment of his debt. Now, in the present case, the Court was not proceeding upon the application of a person claiming to be entitled to the effects of a deceased person, but was proceeding originally upon the application of the creditor himself, and it was only during the pendency of the execution proceedings, that the original mortgagee, decree-holder, died and his legal representatives, the present respondents, were brought on the record. In such a case we do not think that Section 4 of the Succession Certificate Act was any bar to the Court; proceeding with the execution. This view, we think, is in accordance with that indicated by this Court in the case of Baid Nath Das v. Shamanand Das (1894) I.L.R., 22 Cal., 143. The appeal, therefore, fails and must be dismissed with costs.