JUDGMENT

Carr, J - In Suit No. 2 of 1891 of the District Court of Shwegyin Kader Moideen sued the legal representatives of John Nepean, deceased, for redemption of an alleged mortgage. The fact of the mortgage was denied and the defendants claimed to be themselves the owners of the property in suit. The case went to the Privy Council, whose judgment is reported in the Printed Judgments, Lower Burma, p. 95. It was held by their Lordships that the plaintiff was entitled to redeem, and the case went back to the District Court, which proceeded to take an account. There were further appeals, and on 14th December 1896, the Judicial Commissioner of Lower Burma, in his Civil Second Appeal No. 128 of 1895, passed a decree providing that on payment of a sum of over Rs. 1,90,000 by the plaintiff within six months from that date, the defendants should reconvey the mortgaged lands to him, but that if plaintiff should fail to make the said payment within the six months he should stand debarred from all right to redeem the said lands.

2. Kader Moidean again appealed to the Privy Council, and during the pendency of this appeal he applied to the Judicial Commissioner for stay of execution and for an order that the decree be not made absolute. The judgment of the Judicial Commissioner is reported in the Printed Judgments, p. 420. He allowed the application and directed that the decree be not made absolute and for foreclosure pending an order of the Privy Council.

3. The decree of Her Majesty in Council in this appeal was passed on 18th July 1898. It varied the decree of the Judicial Commissioner:

by disallowing so much o? the sum of Rs. 25,200 for principal and Rs. 53,214 for interest charged against the appellant, as represents the allowance of Rs. 100 per mensem after the death of John Nepean and the interest thereon with a consequential variation.

4. In other respects the decree was, affirmed. This decree of Her Majesty in Council was transmitted to the District Court of Pegu, the successor in jurisdiction of the District Court of Shwegyin which had in 1895 cased to exist. But the proceedings were transferred to the District Court of Hanthawaddy on the ground that the Deputy Commissioner, who was also the District Judge of Pegu was the receiver in charge of the lands in suit.

5. Meanwhile Kader Moideen had died on 2nd January 1899. In Civil Miscellaneous Case No. 8 of 1899 of the District Court of Toungoo his nephew Hyder Saib applied for probate of his will and probate was granted to him on 14th March 1899. He then applied to the District Court of Hanthawaddy and was brought on the record as legal representative of Kader Moideen on 6th May 1899. That District Court then proceeded to determine the amount then payable for redemption and on 14th June 1899 found it to be Rs. 2,12,531-1-8.

6. Hyder Saib made no payment and on 18th December 1899, the defendants applied, in Civil Execution No. 28 of 1899 of the District Court of Hanthawaddy to have the decree made absolute. On 6th January 1900, the District Judge passed an order declaring that Kader Moideen and his representatives were for ever debarred from redeeming and directing the Receiver, the Deputy Commissioner of Pegu, to put the defendants in possession of the property.

7. In Civil Miscellaneous Case No. 1 of 1903 of the District Court, Toungoo, Ma Baw U, widow of Kader Moideen, applied for revocation of the probate granted to Hyder Saib. Her application was granted on 19th March 1903, the District Judge finding that the execution of the will propounded was obtained by fraud and that Kader Mpideen was not of sound disposing mind when he executed it. This decision was upheld by the Chief Court of Lower Burma on 3rd March 1904. All the above facts are matters of record and are not in dispute. It may be noted also that there is no suggestion of fraud by the defendants in connexion with Hyder Saib's representation of Kader Moideen.

8. We now come to the present suit. On 30th November 1928, Kader Huss