1 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE Present: The Hon’ble Justice Debangsu Basak And The Hon’ble Justice Md. Shabbar Rashidi A.P.O. No. 123 of 2024 WITH TS 8 OF 2018 Bhawarlal Bhandari Vs Hiralal Bhandari & Anr. For the Appellant : Ms. Nilanjana Adhya, Adv. Mr. Arindam Paul, Adv. Ms. Debarati Das, Adv. Ms. Sohini Choudhury, Adv. For the Respondents : Mr. Diptomoy Talukder Adv. Mr. A. Chakraborty, Adv. Hearing Concluded on : June 19, 2026 Judgement on : July 9, 2026 DEBANGSU BASAK, J.:- 1. Appellant has assailed an order dated June 26, 2023 passed in Testamentary Suit No. 8 of 2018. 2. By the impugned order, learned Trial Judge has allowed an interim application being GA 12 of 2021. SACHIN KAHAR Digitally signed by SACHIN KAHAR Date: 2026.07.09 11:20:50 +05'30' 2 3. Learned advocate appearing for the appellant has submitted that, appellant is one of the caveators to the probate application. She has submitted that appellant is one of the sons of the deceased. 4. Learned advocate appearing for the appellant has submitted that, the learned Trial Judge mis-construed and mis-applied the order dated August 22, 2016 passed in the probate proceedings. She has contended that, the learned Trial Judge also mis-construed and mis-applied the order dated August 28, 2019 passed by the Appeal Court. 5. Learned advocate appearing for the appellant has submitted that, the applicant of GA 12 of 2021 is a company claiming itself to be a creditor of the deceased. The applicant had filed a suit being Money Suit No. 1 of 2019 before the Commercial Court at Alipore. She has pointed out that, such suit was decreed ex parte on March 3, 2020 as against the appellant. 6. Learned advocate appearing for the appellant has contended that, the appellant was a party defendant in Money Suit No. 1 of 2019. Appellant had engaged an advocate for the purpose of contesting such suit. Such advocate however, did not appear in such suit and had allowed such suit to be decreed ex parte as against the appellant. 3 7. Learned advocate appearing for the appellant has contended that, there is an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 pending in respect of the ex parte decree dated March 3, 2020 passed in Money Suit No. 1 of 2019. 8. Learned advocate appearing for the appellant has relied upon Section 323 of the Indian Succession Act, 1925. She has contended that, under the provisions of Section 323 of the Indian Succession Act, 1925, the learned Trial Judge erred in granting the relief to the applicant in GA No. 12 of 2021. 9. Learned advocate appearing for the appellant has referred to the order dated July 20, 2017 passed in GA 3076 of 2016. She has submitted that, the learned Judge noted that there were conflicting stand between the executor and the caveator with regard to the dues and claims made by the creditor. She has contended that, such disputes continue to persist. She has contended that, the claim in GA 12 of 2021 was highly contested. The learned Trial Judge has erred in directing disbursement of payment to applicant in GA 12 of 2021. 10. Learned advocate appearing for the respondent has contended that, the applicant in GA No. 12 of 2021 was referred to as a creditor in the affidavit-of-assets of the deceased. He has drawn 4 the attention of the Court to the affidavit-of-assets of the deceased filed in the probate proceedings. 11. Learned advocate appearing for the respondent has drawn the attention of the Court to the order dated August 22, 2016. He has contended that, the applicant in GA No. 12 of 2021 was referred to as a creditor to the estate of the deceased in such order. He has contended that, the parties are governed by the order dated August 22, 2016 and the Appeal Court’s order dated August 28, 2019. 12. Learned advocate appearing for the respondent has contended that, pursuant to the orders dated August 22, 2016 and August 28, 2019, the applicant in GA No. 12 of 2021 had filed a money suit which was decreed on March 3, 2020. Respondent as the executor of the deceased’s estate had disbursed payment to such applicant on October 03, 2023. 13. Respondent had applied for grant of probate of the Will of his deceased father, as an executor. Appellant had filed a caveat and an affidavit in support of caveat. The probate proceeding had been treated as a contentions cause and registered as Testamentary Suit No. 8 of 2018. 14. In the Testamentary Suit, various orders had been passed from time to time. There are disputes and differences between the appellant as the caveator and the respondent as the executor of the 5 Will of the deceased. Such disputes and differences are still persisting. 15. In the probate proceedings, respondent as executor had filed an affidavit-of-assets of the deceased. In such affidavit-of-assets, apparently, the applicant in GA 12 of 2021 had been shown as a creditor of the estate of the deceased, by the respondent. 16. Issue of disbursement of money out of estate of the deceased to the creditors of the deceased had fallen for consideration before the Court, earlier. The appellant before us has not recognized the Company to whom money was disbursed by the executor as a creditor of the estate of the deceased. By an order dated August 22, 2016, learned Single Judge permitted payment to be made to the creditor of the estate of the deceased, by the executor of the Will on the caution of the consequences of the failure of the executor to obtain probate of the Will of the deceased. Appeal Court by the order dated August 28, 2019 had upheld the order dated August 22, 2016. 17. The applicant of GA 12 of 2021 claiming itself to be a creditor of the estate of the deceased had filed a suit for recovery of money from the estate of the deceased, before the Commercial Court which was registered as Money Suit No. 1 of 2019. Appellant herein had been contesting such suit through an advocate. It has transpired from the records that, such advocate of the appellant did not appear 6 in the Money Suit No. 1 of 2019 after a given point of time. Money Suit No. 1 of 2019 had been decreed ex parte as against the appellant and the other defendant and on admission by the respondent on March 3, 2020. The plaintiff had impleaded the respondent as defendant in Money Suit No. 1 of 2019. The respondent had acknowledged the claim made by the applicant in GA No. 12 of 2021 as plaintiff in Money Suit No. 1 of 2019. The decree dated March 3, 2020, passed in Money Suit No. 1 of 2019 has therefore, been on the basis of the admission of the respondent and ex parte as against the appellant. 18. Appellant had filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 for setting aside of the decree dated March 3, 2020 which is still pending. 19. The applicant in GA No. 12 of 2021 had applied for disbursement in terms of the decree dated March 3, 2020. By the impugned order, learned Single Judge has allowed such application for disbursement. We are informed that disbursement had taken place on October 14, 2023. 20. Section 323 of the Indian Succession Act, 1925 has been invoked by the applicant in GA 12 of 2021 and the respondent herein to comply with the decree dated March 3, 2020 pending the decision in the Testamentary Suit. In other words, despite the Court 7 not having granted the probate in respect of the Will of the deceased, purely on the basis of the decree dated March 3, 2020, the respondent as the executor has proceeded to disburse the decretal amount to the applicant in GA 12 of 2021. 21. There is an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 pending in respect of the decree dated March 3, 2020 passed in Money Suit No. 1 of 2019. Money Suit No. 1 of 2019 was filed by the applicant in GA 12 of 2021. Such suit was decreed ex parte as against the appellant while, decreed on admission as against the respondent. 22. Appellant and the respondent as caveator and executor of the Will of the deceased, respectively, are not consensus ad idem with regard to the liability of the estate of the deceased. Appellant has not recognized the applicant in GA 12 of 2021 to be a creditor of the estate of the deceased while the respondent as the executor has recognized it to be so. 23. In view of the fact that Order IX Rule 13 application of the Code of Civil Procedure, 1908 in respect of the decree dated March 3, 2020 passed in Money Suit No. 1 of 2019 is yet to be disposed of, it would be inappropriate to allow the executor to make disbursement in terms of such decree. The possibility of the decree passed on March 3, 2020 being recalled on the application of the appellant 8 under Order IX Rule 13 of the Code of Civil Procedure, 2008 cannot be overlooked. Probate of the Will of the deceased is yet to be granted. 24. Debt of the estate is being contested by the caveator that is the appellant. Therefore, prudence would demand that, no disbursement out of the estate of the deceased to the applicant in GA 12 of 2021 takes place till the disposal of the application under Order IX Rule 13 of the Code of Civil Procedure, 1908. 25. In view of the discussions above, impugned order dated June 26, 2023 is set aside. 26. Parties are at liberty to take appropriate steps for the purpose of restoration of the positions and status of the estate of the deceased obtaining on the date of the impugned judgment and order. 27. A.P.O. No. 123 of 2024 is disposed of without any order as to costs. [DEBANGSU BASAK, J.] 28. I agree. [MD. SHABBAR RASHIDI, J.]