RAMANATHA REDDY Vs. K V KUPPUSWAMI MUDALIAR
HIGH COURT OF MADRAS
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(1.) THE only point that arises in this appeal is as to whether the legal representatives of the deceased decree-holder can continue the Execution Petition filed by him without a succession certificate. One Natesa Mudaliar obtained a decree against the appellant herein in O. S. 128 of 1964 and he filed E. P. 118 of 1965 in Sub-Court, Vellore. During the pendency of the said E. P. , the said Natesa mudaliar died and his widow, sons and daughters filed E. A. 364 of 1969 for impleading themselves as his legal representatives and to continue the E. P. further. The appellant-judgment-debtor raised the objection that the legal representatives cannot be allowed to continue the E. P. without production of a succession certificate. This objection was overruled by the executing Court, and the respondents herein were brought on record as the legal representatives of the deceased decree-holder and the execution was allowed to proceed. The matter was taken in appeal to the District Court, North Arcot and the appellate Judge also held that no succession certificate was necessary to continue the E. P. filed by the deceased decree-holder. The question is whether the view taken by the court below is correct.
(2.) THE learned counsel for the appellants contends that a succession certificate is necessary under S. 214 (1) (b) of the Indian Succession Act and that the view of the courts below holding that no succession certificate is required for continuance of the E. P. is erroneous. According to the learned counsel Order 22, Rule 12, Civil P. C. will not apply to execution proceedings and it is only Rule 16 of Order 21 and section 146 that can be invoked in relation to execution proceedings, and having regard to the wording of Rule 16 of Order 21 when a legal representative seeks to continue the E. P. , he in effect seeks to substitute himself for the deceased decree-holder which amounts to the filing of fresh execution petition by the legal representative. By such a contention the learned counsel for the appellant seeks to get over a series of decisions holding the view that if the legal representatives seek to continue the E. P. filed by the deceased decree-holder no succession certificate is necessary under Section 214 (1) (b) of the Indian Succession Act.
(3.) IN Mohamed Yusuf v. Abdur Rahim Bepari, (1899) ILR 26 Cal 839 while construing the scope of similar provision in Section 4 of the Succession Certificate act of 1889, it was held that section is not a bar to execution proceedings instituted on a mortgage decree upon the application of the original mortgagee by reason of the original mortgagee having died during the pendency of the proceedings, and that his legal representatives who have been substituted in his place need not produce any succession certificate. The said Section 4 provided that no court shall proceed upon the application of a person claiming to be entitled to the effects of a deceased person to execute against the debtor of such deceased person a decree or order for the payment of his debt. Construing the words 'proceed upon the application of a person claiming to be entitled to the effects of the deceased person' the court expressed the view that when the legal representatives seek to continue the application filed by the decree-holder, the court is not proceeding upon the application of the legal representatives but was proceeding upon the application of the original creditor himself. Balmukund v. Gobindram, AIR 1936 Pesh 17 and Raghubir Narain Singh v. Raj Rajeswari Prasad singh, also took the same view (In Lal Kumari v. Fulmati Kuer, while rejecting a contention raised by the judgment debtor that the heirs of the original decreeholder cannot be permitted to execute the decree without production of a succession certificate under the provisions of section 214 (1) (b) of the Indian Succession Act, the Court held that the execution petition having been commenced by the original decreeholder himself, Section 214 (1) (b) had no application at all to that case, following the decision of the same court in. In Akula Mabukhan v. Rajamma, it was held that it is only an application for execution filed by a person claiming to be entitled to execute the decree that comes within the prohibition enacted in Section 214 (1) (b), that it did not apply to a person who seeks to come on record as legal representative of a decreeholder for the purpose of continuing that application, that the continuance of an execution petition filed by the decreeholder himself by his legal representatives after his death was not hit at by Section 214 (1) (b), and that as such a legal representative need not produce a succession certificate to continue the execution. Chandra Reddy C. J. , speaking for the Bench, states:--"it is manifest from the language of Section 214 (1) (b) that it is only an application for execution filed by a person that comes within the prohibition enacted in S. 214 (1) (b ). Could it be predicated that a person, who seeks to come on record as the legal representative of a decreeholder for the purpose of continuing that application, has applied for execution of the decree? In our opinion, the answer is in the negative. It looks to us that this clause contemplates initiation of execution proceedings by a person and not continuance of proceedings already started by the decree-holder". Another Bench of the Andhra Pradesh High Court in Apparao v. Venkanna, 1969-2 andh WR 479 had also expressed that the language employed in Section 214 (1) (b)is plain and clear enough to indicate that no Court shall proceed to execute a decree upon an application by a person claiming to be entitled thereto on succession and that a succession certificate was not necessary where the applicant simply seeks to continue a pending proceeding.;
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