Tarabai Jain and Others vs Shivnarayan Kothari

S.S. Jha, J.

This matter arises out of an execution proceeding. A compromise decree was passed in favour of Sobhagyamal Jain against Shivnarayan Kothari. In this case, as per the terms of decree, the defendant was required to vacate the premises by 1-8-1978. On his failure to vacate the premises, the plaintiff shall execute the decree and secure possession of the suit property along with the costs of the suit and damages with interest at the rate of Re. 1 per cent per month till 1-8-1978 and Rs. 2/- per day after 1-8-1978 till the possession was delivered to the plaintiff. On failure by defendant to vacate the premises Soubhagyamal Jain put the decree in the execution. The entire amount is also deposited in the Court.

The decree-holder died during execution and the applicants applied before the Court for substitution of their names as legal representatives of the deceased decree-holder. The trial Court has held that the legal representatives cannot proceed with execution unless they produce succession certificate. Learned trial Court relied upon Section 214(1)(b) of Indian Succession Act, 1925 (hereinafter referred to as the ''Act''). Section 214(1)(b) of the Act is reproduced below :-

"214. Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons. - (1) No Court shall -

(a) *** *** *** (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 u/s 31 or Section 32 of the Administrator-Generals 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."

The provision prohibits execution, against the debtor, of a decree or order for the payment on his death, except on production of probate or letters of administration, certificate granted u/s 31 or 32 of the Administrator General Act, 1913, succession certificate granted under Part X, having the debt specified therein.

Learned counsel for the applicants submitted that it is not a debt. The amount was damages of rent, which has already been deposited. Since execution of decree was pending upon the death of decree-holder, the applicants are entitled to be substituted in place of decree-holder and it is not necessary for them to produce succession certificate. Learned counsel for the applicant relied upon the judgment in the case of Lakhan Mahto and Another Vs. State of Bihar, , and submitted that permission to withdraw compensation money already in deposit cannot be treated as an application for execution of award which amounts to a decree within the meaning of Section 214(1)(b) of the Act. Therefore, production of succession certificate was not necessary. Learned counsel also relied upon the judgment in the case of Raghubir Narain Singh Vs. Raj Rajeshwari Prasad Singh and Others, , and submitted that the provision of Section 214(1)(b) of the Act is not applicable to the execution proceedings already instituted. He submitted that the execution proceedings having once been instituted by the original decree-holder his heirs can continue them without production of succession certificate irrespective of whether they are heirs by the principle of inheritance or by survivorship. Learned counsel relied upon another judgment of Calcutta High Court in the case of Anshakana Sur v. Abani Bhusan Sur AIR 1982 Cal. 378, and submitted that this amount is not debt and, therefore, principles of Section 214(1)(b) of the Act are not applicable. He also referred to the judgment in the case of Lal Kumari Devi v. Fulmati Kuer, AIR 1965 Patna 296, and submitted that once execution case has commenced by original decree-holder and upon the death of decree-holder during the course of execution case, his heirs can continue the case. Section 214(1)(b) had no application and succession certificate was not necessary. Learned counsel for the applicants also referred judgment of this Court in the case of Ramlal Bhagirathji v. Mahant Atmaramji Guru Kalyandasji 1960 MPLJ 782, and submitted that Section 214 will not be applicable to the instant proceedings. He also referred to another judgment of this Court in the case of Saifuddin v. Rameshchandra 1972 MPLJ SN 59, and submitted that succession certificate is not necessary, but in this case, legal representatives were brought on record during the suit, therefore, they became decree-holder and, therefore, the Court held that Section 214(1)(b) was not applicable, as the legal representatives were decree holders.

On the other hand, learned counsel for the respondents, submitted that the controversy has been set at rest by the Division Bench judgment of Nagpur High Court in the case of Tejraj Rajmal Marwadi v. Rampyari w/o Kundanmal Marwadi AIR 1938 Nag. 528. Learned counsel submitted that the facts of the case are identical. In the Nagpur case, the decree-holder died during the execution proceedings. His wife claiming to be the legal representative put an application praying that her name be substituted and execution be proceeded with. The Division Bench held that in such cases application came u/s 214(1)(b) of the Act and production of succession certificate was essential and the time should be given for such production.

After considering the rival contentions of the parties, it is to be seen whether the amount deposited is debt. It is already mentioned that the amount attached is already deposited with the Court and in execution only the amount which is deposited with the Court is to be paid.

The word "debt" occurring u/s 214(1)(b) of the Act has a wide connotation. The "debt" means, an amount due to be paid to the decree-holder. In the case of Union of India (UOI) Vs. Raman Iron Foundry, , the question of "debt" is considered by the Apex Court and it is held that when there is an obligation to pay a sum of money at a future date, it is a debt owing but when the obligation is to pay sum money in praesenti, it is a debt due. A sum due would therefore mean a sum for which there is an existing obligation to pay in praesenti, or in other words, which is presently payable.

In the instant case, the decree-holder is trying to get fruits of litigation arising out of compromise decree. Since the debt is nothing but is a sum of money payable, therefore, under the present decree the sum of money alone is payable to the legal representatives. Considering the view, taken by the Division Bench of Nagpur High Court in the case of Tejraj Rajmal Marwadi (supra), the money due to the legal representatives is a debt.

As it has already been held that arrears of rent or money, so payable, is debt, the trial Court has rightly stayed the proceedings directing the legal representatives to bring the succession certificate under Part-X of the Act. No error is committed by the executing Court. The revision is dismissed.