Decided on August 19,1972



- (1.) THE respondents filed a suit against late V.T.V.Ramanuja swami. THE suit was dismissed with costs. THE defendant filed E.P.No. 44 of 1968 to execute the decree for costs but he died during the pendency of the proceedings. THE execution petition was dismissed as no steps were taken to bring the legal representative on record. Later the three appellants filed an execution petition claiming that they were the legal representatives of late Ramanujaswami. Notice was ordered to the plaintiff-judgment debtor. Time was taken for the filing of the counter. No counter was filed and the executing court ordered execution by way of attachment of the properties of the judgment-debtor. THE judgment-debtor paid the amount for which execution was levied, to the bailiff. When the appellants filed a petition for the issue of a cheque the judgment-debtor opposed the application on the ground that the amount could not be paid unless the appellants obtained a succession certificate. Relying on a decision of the Andhra Pradesh High court in K. Appa Rao v. Venkanna (1969) 2 Andh WR 749, the learned Fourth Additional Judge upheld the objection of the judgment debtor and refused to issue a cheque. Sri Laxmanachar, learned counsel for the appellants urged that a succession certificate was necessary only when a debtor was sought to be recovered but when the decree itself was only for costs it was not a debt and no succession certificate was necessary. He distinguished the decision in (1969) 2 Andh WR 479 on the ground that it was a case where a money decree was sought to be executed. THEre seems to be some force in the submission of Sri Laxmanachar. He is also supported in his argument by the decision of a Division Bench of the Calcutta High court in sm. Tarak Dasi v. Batta Krishna Roy, AIR 1964 Cal 42, where Bachawat and Law, JJ., held that the bar of Section 214 (1) (b) of the Succession act was not attracted to a case where the decree that was sought to be executed was for costs only. Following the judgment of the Calcutta High court I allow the appeal. I would also like to add that it was open to the judgment-debtor to have raised the objection in the execution petition before the attachment was ordered. Having failed to raise the objection at that stage, I am of the view that he was precluded from raising the objection at a later stage. THE appeal is allowed with costs. THE lower court will issue a cheque as prayed for.
(2.) APPEAL allowed.;

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