1. This is an appeal by the defendants in a suit brought under Order 21, Rule 63, Civil P.C., to have it declared that the plaintiff is entitled to a certain property and that the attachment which has been made thereon is invalid. The position is this there was one Jagat Chunder Roy, The defendants brought a suit against him for possession of some property and obtained a decree. The decree was in 1907, and under the old Code, an order was made that the question and the amount of masne profits ware to be decided in execution. An appeal by Jagat : Chunder Roy was dismissed by Jagat Chunder Roy died in 1912 having by his will left the property which is now in question to the shebaits of a certain idol. A question hag been raised whether a mere charge was given upon the property in favour of the idol and I am clear and the lower Courts have found that the whole of the beneficial interest in that property was given to the idol. After Boy's death the defendants proceeded in execution and, after certain proceedings, there was a compromise by which the mesne profits were assessed at Rs. 2,500. That was in 1918. In the meantime the administrators with the will annexed to the estate of Roy had put the shebaits in possession of the property now in question. There can be no doubt that they have been in occupation of it and have been utilizing it for the purpose of the Thakur since 1915. Thereupon what happened was that the defendants as judgment-creditors proceeded in execution against the administrators of the estate of Roy to attach this property and the plaintiff made a claim in execution which was disallowed. Thereupon he has brought this suit under Order 21, Rule 63, Civil P.C. claiming that it be declared that this property is not liable to attachment in execution of the decree against Jagat Chunder Roy's legal representatives.
2. Both the Courts have found in favour of the plaintiff and have held that the property is not liable to attachment. The defendants have appealed and what they say is that as this is a debt of Roy, this debt must be paid before any legacy and must be paid before any specific legacy can take effect, The defendants, rely upon Section 326, Succession Act, and in that way they say that the plaintiff's case ought to have been dismissed.
3. Now it is quite true that if a creditor is not paid, he has a right to follow the assets of the deceased whether they be specific legacies or whether they be of a different character. It is old law that he can follow the specific legacy just as much as any other legacy. I find it laid down in Williams on Executors on the authority of the case of Davies v. Nicholson 2 De. G. & J. 603 that
property specifically bequeathed is not discharged from its liability to the testator's debts by the circumstances that there has come to the lianas of the executor persona proparty of the testator not specifically bequeathed more than sufficient to pay his debts and that the specifically bequeathed property has been made over by the executor to the specific legatee.
4. Now the right in India is declared by Section 361, Succession Act. It is a right to call upon the legatee to refund and there are many cases in which it has been pointed out that that is a right which may be exercised by a ere. ditor who remains unpaid. The question was considered in March v. Russell 3 My. & Cr. 31 and comparatively recently in Re Eustace  1 Ch. 561. It is also dealt with by Lord Eldon in Gullespie v. Alexander 3 Russel C.C. 136. The present question however is not merely whether the creditor CIQ follow the assets in the hands of the legatee but whether he can do so by the simple process of levying execution under a decree against the executors or in this case, the administrators. It is reasonably clear to ma that that he cannot do. As Lord Eldon pointed out in the case to which I have referred, the legatee cannot be affected except by a suit and it is not possible upon a judgment against the legal representative to proceed to attach property which has years before been parted with to a specific legatee. The matter was considered in the case of an alienee in the case of Greender Chunder Ghoie v. Mackintosh  4 Cal. 897. The language in the older Coda of the section which corresponds to Section 52 was somewhat different from what it is now and the alterations were apparently made in consequence of the observations made by Mr. Pontifex, J., in this very case where he pointed out that under that section it was intended to confine the procedure to property remaining in the possession of the legal representative, leaving the creditors to follow property improperly alienated by the legal representative by a separate stub. If one considers the language of Section 52 of the Code and if one considers the machinery provided thereunder by Rule 58 onwards of Order 21, Civil P.C., it is clear to my mind that the right of a creditor to follow the assets; in the hands of a legatee is a right; which has to be exercised by a suit. It cannot possibly be exercised merely by levying execution against the assets in the hands of the legatee under a judgment against the legal representative.
5. For these reasons it appears to me that the appeal fails and must be dismissed with costs.
C.C. Ghose, J.
6. I agree.