(1.) THIS is an application for revision of an order dated 11 July, 1969 passed by the learned Subordinate Judge, 10th Court, at Alipore in connection with an execution proceedings. The short facts of the case are as follows : shrimati Mira Debi and Badri Narayan Kurmi who were the owners of a property sold the same by a deed of sale to Shrimati Pila Debi and Kamala Shaw for a consideration of Rs 9920/- together with an agreement for reconveyance within a certain date on payment of consideration. Mira Debi and Badri Narayan Kurmi, however, did not deliver possession of the suit property and the deed was never acted upon. Subsequently, on 29 May 1962 the said Mira Debi and Badri Narayan Kurmi sold the suit property to one Baijnath Singh at the price of Rs. 14,000/ -. After the execution of the deed of sale Mira Debi and Badri Narayan Kurmi became tenants of the suit property at a monthly rent of Bs. 50/- and executed a kabuliyat in favour of Baijnath Singh on 29th May, 1962. At the time of the sale Mira Debi and Badri Narayan Kurmi stipulated that they would make the title of Baijnath perfect by paying the sum of Rs. 9920/- they had received earlier to Pila Debi and Kamala and by getting the reconveyance from them. Mira Debi and Badri Narayan Kurmi failed to do this and as a consequence Baijnath's title over the property remained clouded. So, Baijnath filed the suit asking for the declaration of his title and confirmation of his possession through the tenant or in the alternative a decree for recovery of Rs. 14,000/- from Mira Devi and Badri Narayan Kurmi together with interest thereon at 6% per annum from 29 May, 1962 until realisation. On 20 September, 1967 the plaintiff got a decree for Rs. 14,000/- with interests as aforesaid. Thereafter, Baijnath put the decree into execution by starting Title Execution Case No. 14 of 1968. During the execution of the said case, however, Baijnath died and the present petitioners, namely, Sankarbati Debi and Janardhan Singh were duly substituted and brought on record in the said execution ease by an order dated 18 March, 1969. The judgment debtors filed an appeal and the appeal was rejected summarily. There was an observation in the order dismissing the appeal that the execution case cannot be dismissed and that time should be given to the legal representatives to produce succession certificates, if necessary. Later on, the learned Subordinate Judge heard the execution case and the objection which had been filed by the judgment debtors and passed an order on 11 July, 1969 by which he held that a succession certificate is required to be producer by the substituted decree-holders for realisation of the decretal dues in the execution case. The petitioners have now come up to this High Court for setting aside of the order dated 11 July, 1969.
(2.) SECTION 214 of the Indian Succession Act, 1925 (hereinafter referred to as "the said Act") is in the following terms :
" (1) No Court shall- (a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or (b) proceed, upon an application of a person claiming to be so entitled to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming, of- (i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or (ii) a certificate granted under section 31 or section 32 of the Administrator-General's Act, 1913 and having the debt mentioned therein, or (iii) a succession certificate granted under Part X and having the debt specified therein, or (iv) a certificate granted under the Succession Certificate Act, 1889, or (v) a certificate granted under Bombay Regulation No. VIII of 1927 and, if granted after the first day of May, 1889, having the debt specified therein".
(3.) WE are concerned only with the restriction contained in clause (b) of sub-section (1) which prevents the continuance of execution proceedings by a person claiming on succession to the original decree-holder without furnishing a probate or a succession certificate or some similar document enumerated in the various sub-clauses under clause (b ). It was argued before us by Mr. Lahiri who appeared on behalf of the petitioner that sub-section (1) is only a bar to the institution of execution proceedings by a person claiming on succession and that it was mot a bar to the continuance of execution proceedings which have already been initiated by the deceased decree holder. Emphasis was laid on the use of the word "proceed" in clause (b) of sub-section (1) of section 214 of the Act. The argument was that once the Court has already proceeded at the instance of the original decree-holder there is no further bar to continuing with the proceedings. Reliance was placed upon the case of (1) Khaja Mohammad Yusuf v. Abdar Rehaman Depari, I. L. R. 26 Cal. 839, where a Division Bench of this High Court held that in a case where a mortgagee had obtained a decree upon his mortgage and after instituting execution proceedings died while the same were pending and his legal representatives were substituted in his place, Section 4 of the Succession Act, 1889 (which was the section similar to the present section 214 of the Act of 1925) did not apply and the fact that the legal representatives had not obtained a succession certificate did not debar them from proceeding with the execution. Speaking of clause (b) of sub-section (1) of Section 4 of the Succession Certificate Act of 1889, Banerjee, J. observed that that section could have no application to the case before their Lordships. Banerjee, J. explains :
"for that clause provides 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 a debtor of such deceased person a decree or order for the payment of his debt. Now in the present case the Court was not proceeding upon the application of person claiming to be entitled to the effects of a deceased person, but was proceeding originally upon the application of the creditor himself and it was only during the pendency of the execution proceedings that the original mortgagee, decree-holder, died, and his legal representatives, the present respondents were brought on the record. In such a case we do not think that section 4 of the Succession Certificate Act was any bar to the Court proceeding with the execution''. ;