Rajah D.K. Thimmanayanim Bahadur Varu, ... vs Rajah Damara Kumara Venkatappa Nayanim ... on 3 May, 1927
2. The plaintiff is a money decree-holder who filed a suit against the first defendant in the year 1935. He obtained a decree against the assets of the deceased in the hands of the first defendant. Instead of proceeding to execute the decree he filed the present suit to have the estate administered on the ground that the heir-at-law is wasting the property and has not administered the property as she ought to have done. Both the lower Courts held that under the circumstances of this case there is no justification for the plaintiff filing this action and that the estate need not be administered by the Court. It is argued by the appellant that every creditor has got a right of having the estate of an intestate administered by the Court and relies upon a decision of this Court in Rajah of Kalahasti v. Venkatappa Nayanim Bahadur A.I.R. 1928 Mad. 713 : 27 L.W. 544 Reliance is placed upon the observations of Srinivasa Aiyangar, J., in that judgment. The learned Judge pointed out that the creditor of a deceased has two remedies; one to file a suit against the heir-at-law or the executor for a decree against the assets of the deceased in the hands of the heir-at-law which is the smaller remedy. It was pointed out that there is also another remedy, that is, by way of an administration action. But the question is, assuming that a creditor has got both the remedies, if he files a suit and obtains a decree against the heir-at-law to the extent of the assets of the deceased in his hands, is he entitled to file an administration action and to insist upon the Court administering the estate?