1. The circumstances out of which this suit arose are these: One Sukul Pundari executed a mortgage on the 9th Aughran 1279 in favor of Kristo Shaha, by which he charged certain property with money, and undertook to pay that money by instalments, the bond being what is described a kistbundi bond. The plaint sets out this, and shows that Kristo Shaha is now dead, and that the plaintiff is his heir which is not disputed. It shows that the mortgagor Sukul Pundari is also dead, and that certain instalments of the bond are due. The plaintiff made defendants, first, three persons, sons and heira of Sukul Pundari the mortgagor, and, secondly, other persons who have become purchasers of the property from the heirs of Sukul Pundari. The plaint then went on to pray in paragraph 'for a decree awarding payment of the above Rs. 625 with costs from the property entered in the kistbundi bond and specified below. The cause of action has accrued regularly from the 1st of Pous 1279. Both groups of defendants, or noma of them, entered appearance. The first three defendants, in their written statement, amongst other things, said in the second paragraph: ''As the plaintiff has not obtained a certificate according to Act XXVII of 1860, he has no right by which to bring this action, and the suit cannot proceed.' The other defendants raised no such point.
2. The case came on for hearing before the Munsiff, and issues were settled. They were four in number; one was as to limitation, the second was whether the amount of the bond had been paid, the third was whether the mortgagor alone or any other person had title to the mortgaged properties, and the fourth was whether the purchaser defendants purchased with notice of the mortgage, and, if not, whether their properties were liable. No issue was raised as to any point connected with a certificate under Act XXVII, yet, if any defence based upon the want of a certificate were to be sat up, an issue or issues should have been fixed in order to ascertain the facts necessary to determine whether there was any such defence. Assuming such a defence to be good, there is no finding as to when the plaintiff's father died; there is no finding whether the instalments now in question or any of them fell due in the lifetime of the plaintiff's father, therefore there is no finding whether the debt now in question if there be any debt in question, was a debt payable to the deceased or a debt which has fallen due since his death. And no issue was raised to determine any such question; and therefore the plaintiff had no warning that he had to call, nor any opportunity of calling, evidence upon the question. Accordingly, in the first Court, no further notice was taken of the matter. The presumption is that nobody intended to rely upon it. But when the case came before the District Judge on appeal, the point was apparently taken. His judgment is very short; he says: 'The first objection taken on appeal, also taken below, but not noticed there, that plaintiff, being the representative of a deceased creditor, not having taken out a certificate under Act XXVII of 1860, cannot sue, is fatal to the suit.' I have pointed out that there are no fact3 found which could enable the Court to say that the objection arises at all. In a case of this kind, with regard to a very special defence, as to which no issue had been raised, and no evidence given, and which apparently was never passed in the first Court, I do not think the lower appellate Court ought to have entertained the question. In the absence of the materials necessary to enable the Judge to adjudicate upon it, I think he ought to have left the matter as it was left by the lower Court.
3. I would add this, that it was the duty of the Judge, before giving effect to an objection of this kind, to consider the last words of Section 2 of the Act. That section says: 'No debtor of any deceased person shall be compelled in any Court to pay his debt to any parson claiming to be entitled to the effects of any deceased person, or any part thereof, except on the production of a certificate * * * * unless the Court shall be of opinion that payment of the debt is withheld from fraudulent or vexatious motives and not from any reasonable doubt as to the party entitled.' Before giving effect to the objection the Judge ought to have considered those last words of the section, and made up his mind as to how far they applied to the present case. That is sufficient to dispose of the appeal. It follows that the decree of the lower appellate Court must be set aside and the case must go back to him in order that he may hear the appeal on the merits.
4. I think it right to say one thing more. We have been referred to the case of Janaki Ballav Sen v. Hafiz Mahomed Ali Khan 13 C. 47 as an authority for the proposition that the section in question applies so as to preclude a suit, not for a personal decree, but to enforce a mortgage against the mortgaged property. The case in question differs from this case in one respect. It was, as this is, a suit against the mortgagor and also against purchasers from him ; but in that case the plaintiff asked not only for a decree against the mortgaged property in the hands of the purchasers, but also for a personal decree against the mortgagor for the mortgage money, and that decree was given by the lower Court. But in this Court the only persons appealing were the purchasers, who were affected only by so much of the decree as enforced the mortgage charge against the mortgaged property. The Court in that case reversed the decree and dismissed the suit for want of a certificate. That is said to be, and apparently is, an authority for the proposition that, under the section in question, a suit will not lie without a certificate by the representative of a deceased person to enforce a mortgage against the mortgaged property. If it be an authority for that proposition, I must say that I am not prepared to follow it. But for that decision I should have thought it clear that the section does not apply to such a suit. The words of the section are that 'no debtor of any deceased person shall be compelled in any Court to pay his debt to any person' without a certificate. It seems to me that this is limited to suits against a 'debtor' and can have no application to a suit against a purchaser of a mortgaged property, who is in no sense a debtor. Secondly, it seems to me that the words are limited to cases in which a Court is asked to 'compel' a debtor 'to pay,' that is to say, to make a personal decree against the debtor. To me it seems to have no application to a suit such as the present. If it were necessary to decide this question, I should not be prepared to follow the decision cited, and it would probably have been proper to refer the question to a Full Bench.
5. The case will go back to the lower appellate Court to be dealt with on the merits. Costs of this appeal will abide the result.