KASUMARI DAS Vs. MAKKU

JUDGEMENT

(1.) THIS is a second appeal in a suit for redemption brought by the legal representative of the deceased mortgagor, which suit has been dismissed by both the Courts below on the ground that up to the time when the decree was passed the plaintiff failed to obtain a succession certificate. The suit was brought without any succession certificate having been even applied for. Objection was taken and an issue framed Whether the plaintiff could maintain the suit without obtaining the certificate. The trial Court granted the plaintiff a fortnight within which to obtain the necessary certificate. He filed an application for a certificate in respect of half the debt, and this application was rejected. The order rejecting the application for a certificate was taken in appeal to this Court and was held to have been properly passed. The learned Judges who decided the appeal allowed the plaintiff to apply for a fresh certificate on a proper application in respect of the whole debt. He did so apply and obtained a certificate which he filed in the appellate Court. The learned District Judge has held that this certificate could not have retrospective effect and has supported his view by observations to this effect in the judgment of the Full Bench in Fateh Chand V/s. Muhammad Bakhsh [1894] 16 All. 259. In that case also time was allowed to the party to obtain a certificate and he failed to obtain it within the time which was allowed. In the judgment of the Full Bench it is said that no subsequent production of the certificate could show that the decree of the Subordinate Judge was contrary to law. THIS observation applies exactly to the present case. It was held also in the Full Bench case that a succession certificate was necessary in respect of a mortgage-debt, and this point is not contested before us. The Subordinate Judge was, therefore, prohibited by Section 4 of the Succession Certificate Act from passing any decree in respect of the debt without the production of a succession certificate or one or other of the documents mentioned in Clauses (i) to (v) of the section. The decree of the Subordinate Judge was, therefore, perfectly correct and the appeal to the Court below was rightly dismissed. We dismiss this appeal with costs.