1. We think that the order of the lower Appellate Court must be varied in this case. The suit is for two distinct things. In the first place, it is a suit in which the second defendants are principally interested, with the view of giving the plaintiff a share of the sale-proceeds of certain property. With regard to this claim it is enough to say that we see no ground whatever for differing from the view taken by the Court below; but then there is a matter of greater difficulty, namely, the suit as against the first defendant. The object of that is to enforce the mortgage-decree which the plaintiff has obtained against the former owner of the property, viz., Pitamber, against the property which has now passed into the hands of the first defendant, who has purchased it at an auction sale in execution of a money decree. Prim facie the plaintiff is entitled to that, because the sale in execution of the money decree was the sale of the right, title and interest of the mortgagor, and there was nothing to show that the sale was not what the law ordinarily contemplates in such a case, that is to say, a sale subject to the mortgage lien. But two reasons have been given for holding that the mortgage lien Was superseded by the rights of the person at whose suit the execution sale took place. The first is that the decree which was against the representatives of the original owner of the property in question declares that the property of the original owner is liable. But the decree is in the ordinary form of a decree made in a suit against the representative of a deceased person. It is a decree which is known to English lawyers as De bonis testatoris, a decree which by its terms is to be satisfied out of the assets left by the deceased person. It appears to us that it has no other effect than as a mere money decree, and has not the effect of creating a charge upon the property. This case differs from the case of Bazayet Hossein v. Dooli Chund I.L.R. 4 Cal. 402 where the decree in question was a decree which distinctly bound the property.
2. The second ground urged for holding that the judgment-creditor's debt had priority over the mortgage, was by reason of the will of the testator. In that he undoubtedly directs payment of his debts, and he directs that subject to the payment of those debts, the property should be taken by his heirs, and he mentions certain debts specifically including the debt of the judgment-creditor. But he goes on to say that payment is to be made of all his debts, present and future. That, therefore, is simply a general direction to pay all his debts out of his estate, and that, upon the authorities, clearly creates no charge. It directs nothing more than what the law requires every executor, or heir, or other representatives to do, that is, to pay the debts of the testator out of his assets. It appears to us, therefore, that the plaintiff is entitled to execute his decree against the property in question. Of course it would have been otherwise if the finding of the Munsif had stood to the effect that the transaction was fraudulent; but we feel ourselves bound, in spite of the suspicious circumstances of the case, by the finding of the lower Appellate Court on this question which is one of fact. The plaintiff is, therefore, entitled to execute his decree against the property. On the other hand we find that, although the mortgage includes twelve pieces of property, and the plaintiff's decree covers those twelve pieces of property, he deliberately abstains from executing his decree against eleven properties, which still remain in the possession of the mortgagor, and comes into Court with this suit, in which he tries first to proceed against the execution-creditor, and failing that, against the purchaser from his debtor, the object being apparently to make everybody but his debtor pay the debt due to him. It appears to us that he cannot be allowed to do that. All the parties interested are before the Court. Pitamber is a party, plaintiff is a party, and the first defendant is a party. On the inquiry that we propose to direct all these persons should be heard. There will be an inquiry in the first instance how the mortgage debt should be apportioned between the twelve properties, and what portion of it should be charged upon the property which the plaintiff now seeks to charge. The plaintiff will not be allowed to take out execution against this property, except for the amount which upon such inquiry should be properly charged upon it, without satisfying the Court that he has made every possible effort to execute the remainder of his decree against the other eleven properties.
3. In this way the decree of the lower Appellate Court will be varied, and the case will be remitted to the Court of First Instance for the purposes of the inquiry above directed.
4. Under the circumstances of the case we think it undesirable to make any order for the costs of this appeal. The appellant has succeeded in part and he has failed in material parts of his case, and his conduct in the case is not such as to entitle him to any indulgence.
5. The second defendants are entitled to their costs of this appeal, which as regards them is dismissed.