Arthur Wilson, J.

1. The circumstances out of which this suit arose are these:One Sukul Pundari executed a mortgage on the 9th Aughran 1279 in favor ofKristo Shaha, by which he charged certain property with money, and undertook topay that money by instalments, the bond being what is described a kistbundibond. The plaint sets out this, and shows that Kristo Shaha is now dead, andthat the plaintiff is his heir which is not disputed. It shows that themortgagor Sukul Pundari is also dead, and that certain instalments of the bondare due. The plaintiff made defendants, first, three persons, sons and heirs ofSukul Pundari the mortgagor, and, secondly, other persons who have becomepurchasers of the property from the heirs of Sukul Pundari. The plaint thenwent on to pray in paragraph "for a decree awarding payment of the aboveRs. 625 with costs from the property entered in the kistbundi bond andspecified below. The cause of action has accrued regularly from the 1st of Pous1279. Both groups of defendants, or noma of them, entered appearance. The firstthree defendants, in their written statement, amongst other things, said in thesecond paragraph: As the plaintiff has not obtained a certificate accordingto Act XXVII of 1860, he has no right by which to bring this action, and thesuit cannot proceed." The other defendants raised no such point.

2. The case came on for hearing before the Munsiff, andissues were settled. They were four in number; one was as to limitation, thesecond was whether the amount of the bond had been paid, the third was whetherthe mortgagor alone or any other person had title to the mortgaged properties,and the fourth was whether the purchaser defendants purchased with notice ofthe mortgage, and, if not, whether their properties were liable. No issue wasraised as to any point connected with a certificate under Act XXVII, yet, ifany defence based upon the want of a certificate were to be sat up, an issue orissues should have been fixed in order to ascertain the facts necessary todetermine whether there was any such defence. Assuming such a defence to begood, there is no finding as to when the plaintiffs father died; there is nofinding whether the instalments now in question or any of them fell due in thelifetime of the plaintiffs father, therefore there is no finding whether thedebt now in question if there be any debt in question, was a debt payable tothe deceased or a debt which has fallen due since his death. And no issue wasraised to determine any such question; and therefore the plaintiff had nowarning that he had to call, nor any opportunity of calling, evidence upon thequestion. Accordingly, in the first Court, no further notice was taken of thematter. The presumption is that nobody intended to rely upon it. But when thecase 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 therepresentative of a deceased creditor, not having taken out a certificate underAct XXVII of 1860, cannot sue, is fatal to the suit." I have pointed outthat there are no fact found which could enable the Court to say that theobjection arises at all. In a case of this kind, with regard to a very specialdefence, as to which no issue had been raised, and no evidence given, and whichapparently was never passed in the first Court, I do not think the lowerappellate Court ought to have entertained the question. In the absence of thematerials necessary to enable the Judge to adjudicate upon it, I think he oughtto 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 wordsof Section 2 of the Act. That section says: "No debtor of any deceasedperson shall be compelled in any Court to pay his debt to any parson claimingto 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 ofopinion that payment of the debt is withheld from fraudulent or vexatiousmotives and not from any reasonable doubt as to the party entitled."Before giving effect to the objection the Judge ought to have considered thoselast words of the section, and made up his mind as to how far they applied tothe present case. That is sufficient to dispose of the appeal. It follows thatthe decree of the lower appellate Court must be set aside and the case must goback 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 beenreferred to the case of Janaki Ballav Sen v. Hafiz Mahomed Ali Khan 13 C. 47 asan authority for the proposition that the section in question applies so as topreclude a suit, not for a personal decree, but to enforce a mortgage againstthe mortgaged property. The case in question differs from this case in onerespect. It was, as this is, a suit against the mortgagor and also againstpurchasers from him ; but in that case the plaintiff asked not only for adecree against the mortgaged property in the hands of the purchasers, but alsofor a personal decree against the mortgagor for the mortgage money, and thatdecree was given by the lower Court. But in this Court the only personsappealing were the purchasers, who were affected only by so much of the decreeas enforced the mortgage charge against the mortgaged property. The Court inthat 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 therepresentative of a deceased person to enforce a mortgage against the mortgagedproperty. If it be an authority for that proposition, I must say that I am notprepared to follow it. But for that decision I should have thought it clearthat the section does not apply to such a suit. The words of the section arethat "no debtor of any deceased person shall be compelled in any Court topay his debt to any person" without a certificate. It seems to me thatthis is limited to suits against a "debtor" and can have noapplication to a suit against a purchaser of a mortgaged property, who is in nosense a debtor. Secondly, it seems to me that the words are limited to cases inwhich a Court is asked to "compel" a debtor "to pay," thatis to say, to make a personal decree against the debtor. To me it seems to haveno application to a suit such as the present. If it were necessary to decidethis question, I should not be prepared to follow the decision cited, and itwould probably have been proper to refer the question to a Full Bench.

5. The case will go back to the lower appellate Court to bedealt with on the merits. Costs of this appeal will abide the result.

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Roghu Nath Shaha vs.Poresh Nath Pundari and Ors. (17.06.1887- CALHC)