Kothamasu Lakshmaiah vs Kothamasu Satyanarayana and Another

Panduranga Rao, J.—The short submission made by the learned counsel for the revision petitioner/ J. Dr. relying upon a Division Bench decision of our High Court in K. Appa Rao v. J. Venkanna, 1969 (2) APLJ 475 is that without filing a Succession certificate, it is not open to the legal representative to be impleaded as second decree holder in the execution petition basing upon a will dt.7-5-83.

The Division Bench held that the language employed in Section 244(i)(b) (of Indian Succession Act) 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 it is not open to the petitioner to apply for execution of the decree obtained by his father without obtaining and producing a succession certificate as he claimed by succession and not by survivorship. In that case the decree holder died some time after 15-2-62 and thereafter his son claiming to have become entitled to all the properties of the decree holder pursuant to a will executed by him filed E.P. No.129/1963 for execution of decree by attachment and sale of immovable property is belonging to the Judgment debtor. The Division Bench held that the petitioner was not entitled to apply for execution of decree obtained by his father without producing a succession certificate.

But another Division Bench of our High Court held in Akula Mabukhan Vs. Rajamma and Others, .

"It is only an application for execution filed by a person that comes within the prohibition enacted in Section 214(i)(b). It does not apply to a person who seeks to come on record as the legal representative of a decree holder for the purpose of continuing that application."

The Division Bench held that consequently the continuance of an execution petition filed by the decree holder himself, by his legal representatives after the death of the decree holder is not hit at by Section 214(i)(b) of the Indian Succession Act and that the legal representative need not produce succession certificate to continue the execution. In this case the cause title itself shows that the execution petition was filed even in 1982-by the decree holder during her life time. Subsequent to her death on 7-5-83 the first respondent herein who is the brother of the decree holder sought to come on record as the legal representative of the decree holder on the basis of a will dt.7-5-83. The will was duly proved by the legal representative by examining an attestor before the executing court. It is there/ore clear that the execution petition is not sought to be filed by the legal representative on the basis of succession but the first respondent is seeking to come on record as the legal representative of the decree holder who had already filed the execution petition.

Therefore the decision of the Division Bench in Mabukhan v. Rajamma (2 supra) applies to the facts of the case but not the decision of the Division bench in K. Appa Rao v. J. Venkanna(1 supra). Following the decision in Mabukhan v. Rajamma (2 supra) I hold that there is no necessity for the first respondent herein to file the succession certificate for continuing the execution petition initiated by the decree holder during her life time.

The revision petition is therefore dismissed confirming the order of the learned Prl. Subordinate Judge Narasaraopet in E.A.No. 381/83 in E.P. No. 18/82 in O.S.No. 22/69 thereby adding the first respondent herein as the legal representative of the deceased decree holder and as second decree holder in E.P. No. 18/82 in O.S. No. 22/69. There shall be no order as to costs.