P L D 1960 Dacca 786 (PLP)

B. C. Panday for Appellant. P. K. De for Respondents. This appeal arises out of an application under section 47 of the Code of Civil Procedure objecting to the execution of the decree for costs against the appellant. It is directed against the order of the District Judge, Dacca, rejecting the objection of the appellant under section 47 of the Code of Civil Procedure.

2. The facts of the case, shortly stated, are as follows: One Jagabandhu Sen Poddar disposed of his properties by a Will and one Bhagabati Dasi was appointed executrix. The Will was probated by her. But she died, according to the allegation of the appellant, leaving many of the provisions of the Will unexecuted. There upon present appellant Tarak Nath Sen, son of Jagabandhu Sen Poddar, filed an application under section 263 of the Succession Act for revocation of the probate or ‑letter of administration granted to Bhagabati Dasi, the widow of the testater. In that proceeding, respondents in this appeal Kartik Chandra Sen and Anantalal , en were impleaded as persons interested in the pro perties of the Will. That proceeding which has to be treated as a suit under section 265 of the Succession Act was dismissed with costs of Rs. 61.

3. There was an appeal in the High Court but the appeal was withdrawn. Thereafter this appellant Taraknath Sen filed an application for letter of administration to administer the Will of the testator Jagabandhu Sen Poddar. During the pendency of this proceeding for a fresh letter of administration, the appellant prayed for appointment of de bonis non and pendente lite but that prayer was refused. But the Court granted him an injunction restraining opposite parties, the present respondents, from disposing of the properties or otherwise interfering with the properties by way of sale or otherwise. Then ultimately his application for letter of administra tion met the same fate as his suit for revocation against which an appeal, being F. A. No. 169 of 1959, is pending in this Court. In the meantime, the decree‑holder in revocation pro ceeding filed an application for execution of the decree for costs of Rs.

61. The present appellant filed an objection under section 47 of the Code of Civil Procedure objecting to the execution of the decree and praying for stay of the execution of that decree till the disposal of the proceeding for granting a fresh letter of administration and for administration of the Will of the testator. The learned District Judge by his order, dated 10th December 1956, dismissed Misc. Case No. 37 of 1956 under section 47 of the Code of Civil Procedure holding that the subject‑matter of the suit in the two cases are quite distinct and separate. Against this order, the present appeal has been filed.

4. Mr. B. C. Panday, the learned Advocate for the appellant, contends that the appellant's application under section 47 of the Code of Civil Procedure objecting to the execution of the decree and praying for stay of execution proceeding till the disposal of the suit for letter of administration should have been allowed and execution of the decree should have been stayed under Order XXI, rule 29 of the Code of Civil Procedure as well as under section 214 of the Succession Act. Order XXI, rule 29, provides that where a suit is pending in any Court against the holder of a decree of such Court, on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending, suit has been decided. Mr. Panday's contention is that at least the execution of the decree for costs in Misc. Case No. 14 of 1952 for revocation of the prebate should have been Stayed under Order XXI, rule 29 of the Code of Civil Pro cedure till the disposal of the suit by the appellant Tarak Nath Sen against the respondents for letter of administration under section 247 which was pending at that time in the Court of the District Judge.

5. On the other hand, Mr. De, the learned Advocate for the respondents, contends that rule 29 speaks of suits and not of proceedings. I am unable to accept this contention of Mr. De that provision of Order XXI, rule 29, is not applicable in the case of a proceeding for a letter of administration or proceeding for revocation of probate under sections 247 and 263 respectively. Under secs. 295 of the Succession Act, the proceeding shall take as nearly as may be the form of a regular suit according to the provision of the Code of Civil Procedure, 1908, in which the petitioner for probate or letter of administration, as the case may be, shall be the plaintiff and the person who appear to oppose the grant shall be the defendant. Even accepting 'the contention of Mr. De that it is a proceeding, then ‑ also it comes within the meaning of section 141 of the Code of Civil Procedure and will be governed by the procedure provided in the Code of Civil Procedure in regard to suits. I think 'the learned District Judge has failed to appreciate this provision when he dismissed the application under section 47 of the Code of Civil Procedure including the prayer for stay on the ground that the subject- matter of the two suits are quite distinct and separate.

6. Mr. P. K. De, the learned Advocate for the respondents, points out that the stay contemplated in Order XXI, rule 29 of the Code of Civil Procedure is during the pendency of the suit and suit in this rule does not include an appeal. Therefore, he says that when the application for probate or letter of administration, being Misc. Case No. 21 of 1954, has been disposed of by the District Judge, the petitioner cannot now claim stay of execution of the decree for costs in Misc. Case No. 14 of 1952. I think this contention of Mr. De is of substance as the words `until the pending suit has been decided' cannot be considered until and unless it has been finally decided so as to include an appeal as well. There is a conflict of decisions on this point. In the case of Mahesh Chandra Sadhu and others v. Jogendra Lal Sarkar and others (32 C W N 181), it has been held that the suit here includes an appeal whereas, in the case of Radh Baldev Khan and others v. Peary Lal Ghosh (35 C W N 540) as well as in the case of S. A. Ramanath Chettiar v. M. P. Kasi Chettiar alias Meyyappa Chettiar and others (A I R 1944 Mad. 73), it has been held that the suit here does not include as appeal. So, according to these decisions, further proceeding in the execution of the decree in Misc. Case No. 14 of 1952 cannot be stayed. Next Mr. De contends that the amount of cost decreed‑ is only Rs. 61 and that has already been deposited by the appellant in the Court, At best, the respondents may be directed to withdraw the amount on furnishing security to the satisfaction of the Court, if the appellant apprehends that in case of his success in the suit he would not be able to realise that amount from the respondents, but this is not his case.

7. Another contention raised by the learned Advocate for the appellant is that the execution petition has not given the date of the decree. I have seen the execution petition. Though the petition does not contain the date on which the Subordinate Judge signed the decree, it contains the date on which the judgment was delivered and, therefore; in accordance with the provision of the Code of Civil Procedure, the decree shall bear the date of the judgment and so it cannot be said that the date of the decree has not been given.

8. There is another objection that the application has not been properly verified but I do not understand what benefit it will bring to him when he has already deposited the decretal amount in Court. Even if there is any mistake in the execution petition and even if it has not been properly verified, it can be corrected at any time with the permission of the executing Court.

9. The result, therefore, is that this appeal is dismissed. In view of the relationship between the parties, that is, the appellant is the grandson of the testator Jagabandhu Sen Poddar and the respondents are the sons of the testator Jagabandhu Poddar, I make no order as to costs throughout including this Court. K. B. A. Appeal dismissed.