Banerjee, J.

1. In this appeal, which arises out of certain proceedingstaken in execution of a mortgage decree, the only question raised on behalf ofthe appellant who was defendant No. 7 in the Court below, and was made adefendant 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 executionproceedings which were instituted upon the application of the original mortgagee,by reason of the original mortgagee having died during the pendency of theproceedings and his legal representatives who were substituted in his place nothaving produced any succession certificate.

2. The learned Vakil for the appellant very fairly admitsthat the weight of authority in this Court is apparently against hiscontention, but he seeks to distinguish the cases bearing upon the point, viz.,Roghu Nath Shaha v. Poresh Nath Pundari I.L.R. (1887) 15 Cal., 54 [LQ/CalHC/1887/68] ; Kanchan Modiv. Baij Nath Singh I.L.R (1892) 19 Cal 336, and Baid Nath Das v. Shamanand DasI.L.R (1894) ., 22 Cal., 143 [LQ/CalHC/1894/95] , from the present on the ground that in none ofthose cases was any personal decree against the mortgagor asked for, whereas inthis case such a decree was asked for and has been granted; and he relies uponthe case of Fateh Chand v. Muhammad Bakhsh : I.L.R (1894) .,16 All., 259, decided by a Full Bench of the Allahabad High Court, in supportof his contention.

3. So far as the distinction sought to be drawn between thepresent case and the cases decided in this Court bearing upon the point nowbefore us goes, it would be sufficient to say that the only defendant againstwhom a personal decree has been granted is defendant No. 1, and he is not oneof the appellants before us, nor indeed did he raise any objection in the Courtbelow to the execution proceedings; and as against the defendant No. 7 theappellant before us, the only decree made is not a personal decree, but adecree allowing the mortgagee to proceed against the mortgaged property in hishands; so that, as far as the appellant is concerned, the case is governed bythe principle laid down in the cases of Roghu Nath Shaha v. Poresh Nath PundariI.L.R (1887) 15 Cal 54; Kanchan Modi v. Baij Nath Singh I.L.R (1892) 19 Cal.,336; and Baid Nath Das v. Shamanand Das I.L.R (1894) 22 Cal., 143 [LQ/CalHC/1894/95] . We agreewith the view taken in those cases and respectfully dissent from that taken bythe Allahabad High Court in the case of Fateh Chand v. Muhammad Bakhsh: I.L.R (1894)., 16 All., 259.

4. But there is another reason why we think that thecontention of the appellant in this case should fail, and that is this, thatSection 4, Sub-section 1, Clause (b), which is the only provision of theSuccession Certificate Act under which the case could possibly come, can haveno application to the present case. For that clause provides that no Courtshall "proceed upon the application of a person claiming to be entitled tothe effects of a deceased person" to execute against a debtor of suchdeceased person a decree or order for the payment of his debt. Now, in thepresent case, the Court was not proceeding upon the application of a personclaiming to be entitled to the effects of a deceased person, but was proceedingoriginally upon the application of the creditor himself, and it was only duringthe 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 ofthe Succession Certificate Act was any bar to the Court; proceeding with theexecution. This view, we think, is in accordance with that indicated by thisCourt in the case of Baid Nath Das v. Shamanand Das I.L.R (1894) ., 22 Cal.,143. The appeal, therefore, fails and must be dismissed with costs.

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Mahomed Yusuf vs.Abdur Rahim Bepari and Ors. (03.07.1899- CALHC)