Sir John Beaumont.-

This is an appeal from the judgment and decree of the High Court of Judicature at Nagpur dated the 3rd October, 1939, which affirmed the judgment and decree of the District Judge of Nimar dated the 7th September, 1936, which in turn affirmed the judgment and decree of the Subordinate Judge of Khandwa, dated the 19th February, 1936.

The appeal arises in execution proceedings in the following circumstances.

In the year 1908, Rao Kishore Singh had instituted a suit against two widows to recover possession of an estate known as Bhamgarh Zemindary. In that litigation Kishore Singh was claiming that the Estate was an impartible one and had descended upon him under the rule of primogeniture as the eldest male descendant of the last holder. His claim, if successful, would clearly operate for the benefit of an eldest son who might succeed him. Kishore Singh obtained a decree in his favour from the trial Court, but the decree was reversed by the Court of the Judicial Commissioner of the Central Provinces. In order to raise money to enable him to prosecute an appeal to His Majesty in Council Kishore Singh on the 11th November, 1912, entered into an agreement with one, Ramji Patel, under which Ramji Patel was to advance Rs. 5,000, and if Kishore Singh succeeded in his appeal he was to sell a part of the said Estate to Ramji Patel on the terms specified in satisfaction of the loan.

Kishore Singh succeeded in his appeal before the Judicial Committee of the Privy Council but refused to carry out his agreement with Ramji Patel. Accordingly Ramji Patel instituted a suit in the Court of the District Judge of Nimar asking for specific performance of the said agreement or in the alternative an order for repayment of the amount advanced with interest. That suit also ultimately went in appeal to His Majesty in Council and the Judicial Committee held that Ramji Patel was entitled to specific performance of the agreement of the 11th November, 1912, but that compensation in money would afford adequate relief. Accordingly by Order in Council dated 10th May, 1929, Their Lordships reported to His Majesty that a decree should be made in favour of the appellant for Rs. 20,000 with interest thereon at the rate of 6 per cent. per annum until realisation and that there ought to be paid to the appellant certain costs of the appeal.

A decree was duly passed pursuant to the said Order in Council and prior to the death of Kishore Singh part of the Bhamgarh Estate was attached in execution of such decree. Kishore Singh died on the 11th August, 1930, and the present appellant as his eldest son succeeded to the Bhamgarh Estate and was thereupon brought on record in the execution proceedings as legal representative of Kishore Singh.

On the 8th December, 1930, the appellant made an application to the execution Court asking for a stay of execution to enable him to raise the money due. He did not suggest that the decree could not in law be executed against him. However, on the 12th March, 1934, the appellant made a further application in the said execution proceedings alleging that the property under attachment formed a part of the Bhamgarh Estate which was impartible and governed by the law of primogeniture; that the property had been attached in a personal decree against Kishore Singh; and that the property in dispute was not an asset of the late Kishore Singh in the hands of the appellant who claimed to be the sole owner; and the appellant prayed that the property be released from attachment and the execution be stayed.

This application was dismissed by the Judge in the execution proceedings on the 19th February, 1936. The appellant appealed to the District Judge and his appeal was dismissed on the 7th September, 1936. He then presented a second appeal to the High Court of Judicature at Nagpur which was dismissed on the 3rd October, 1939. From that judgment this appeal has been brought on the certificate of the said High Court. The respondents are the re

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