TARUN CHATTERJEE,J - (1.) THE short question which arises for determination in this appeal is whether an Executor to the Will of a deceased decree-holder is entitled to take possession of a premises as his legalure resentative in respect of which the decree for eviction had been passed in execution of the said decree without producing the probate of the Will in question in the executing Court in view of Section 213 of the Indian Succession Act, 1925 (the Act for short).
(2.) MR . J.J. Madan, who is the Appellant No. 2 herein (hereinafter referred to as "Mr. Madan") was a tenant in respect of Eastern Portion of premises No. 3, Surendra Nath Banerjee Road, Calcutta-7000(3) (hereinafter referred to as the "Decretal Premises") under the decree-holder, Roshan Lal Arora, since deceased, (hereinafter referred to as 'the deceased decree-holder'). In the year 1974 the deceased decree-holder instituted a suit for ejectment in respect of the decretal premises against Mr. Madan on ground that Mr. Madan had sub-let the decretal premises to one Mohan Lal Bajoria, now deceased. On 16th of June, 1980 the aforesaid ejectment suit was deceased ex parte on a finding that Mr. Madan had sub-let the decretal premises to the said Mohan Lal Bajoria, now deceased. For setting aside the aforesaid ex parte decree of eviction an application under Order 9 Rule 13 of the Code of Civil Procedure was filed by Mr. Madan through Mohan Lal Bajoria, now deceased, who was holding a power of Attorney alleged to have been executed by Mr. Madan. Roshan Lal Arora, who has been described as the 'Deceased Decree-holder' for out purpose died during the pendency of the application under Order 9 Rule 13 of the Code of Civil Procedure. Initially Harish Kumar Arora, one of the respondents and one of the sons of the deceased decree-holder was substituted as an heir and legal representative of the deceased decree holder in the application under Order 9 Rule 13 of the Code of Civil Procedure at the instance of Mr. Madan and his constituted Attorney, Mohan Lal Bajoria now deceased. Subsequently, another application for addition of party and for amendment of the application under Order 9 Rule 13 of the Code of Civil Procedure was filed on behalf of Mr. Madan praying that Surinder Kumar Arora, who is another son of the deceased-decree holder be also added and/or substituted as an heir and legal representative of the deceased decree-holder and as a consequence thereof the cause little of the application under Order 9 Rule 13 of the Code of Civil Procedure be amended in the following manner :- "That after the decision of the Opposite Parties, the words that both sons of late Roshan Lal Arora and Executors to the Will left by the deceased Roshan Lal Arorad be added" It appears from the recort that this application filed on behalf of Mr. Madan was allowed and the respondents were, therefore, substituted as sons of the deceased decree-holder and also as Executors to the Will left by the deceased decree-holder. The application under Order 9 Rule 13 of the Code of Civil Procedure was thereafter rejected by the Trial Court and an appeal was taken to this Court against the said order of rejection. During the pendency of the appeal in this Court it appears that Mohan Lal Bajoria who was alleged to be the constituted Attorney of Mr. Madan also died and the present Appellant No. 1 continued with the said appeal on the basis off another Power of Attorney executed by Mr. Madan in his favour. The appeal against the order rejecting the application under Order 9 Rule 13 of the Code of Civil Procedure was subsequently dismissed by this Court and a Special Leave Petiton taken, therefore, to the Supreme Court had also been dismissed. On or about 9th April, 1987 the Respondents as sons and as executors to the Will of the deceased decree-holder filed an application in the Executing Court for permission to execute the decree obtained by the deceased decree-holder. By an order dated 8th July, 1987 the Executing Court passed an order allowing the respondents to proceed with the execution case filed by them. The executing Court by the aforesaid order held that as Respondents were sustituted in the application under Order 9 Rule 1 of the Code of Civil Procedure in place of the deceased decree-holder at the instance of Mr. Madan and the respondents being the executors to the Will of the deceased decree-holder must be permitted to proceed with the execution case as 'Legal Representatives' of the deceased decree-holder. On 2th November, 1987 an application under Order 21 Rule 97 of the Code of Civil Procedure was filed by the Respondents for police help on the ground that as strong resistance in executing the decree was offered by the Appellant No. 1 there was apprehension of breach of peace and in consequence thereof decree for eviction could not be executed. By the order under appeal the Executing Court allowed the application under Order 2 Rule 9 of the Code of Civil Procedure and directed the Officer-in-charge Taltala, Police station to render police help to the respondents at the time of execution of the said decree. The present appeal has been referred against this order of the Executing Court allowing the application filed on behalf of the Respondents for police help.
(3.) THE main contention of Mr. Dasgupta, appearing on behalf of the appellants was that as the Will executed by the deceased decree-holder has not been probated, and the right of the Respondents under the Will of the deceased decree-holder had not been established the question of taking possession of the decretal premises by the respondents in execution of the decree for eviction obtained by the deceased decree-holder could not arise until the probate of the Will in question was produced before the Executing Court in view of Section 213 of the said Act which created a bar to the respondents to take possession of the decretal premises in executing of the said decree. In support of this contention, Mr. Dasgupta relied on the decision of the Supreme Court reported in Hum Nalini Judah, (since deceased) v. Mrs. Isoline Saroj Basini Bose and ors., AIR 1962 Supreme Court 471 and also the decisions reported in Soona Mayna Kera Roona Meyappa Chitty v. Soona Naveba Suppramanian Chitty, 20 CWN 837 and Amar Chandra Roy and another v. Abanidher Roy and ors., 84 CWN 267. Reliance was also placed on behalf of the appellant on the case of Vaman Ganpatrao Trilokekar v. Mrs. Malati Ramchandra Raut, reported in AIR 1988 Bombay 321.;