Thoma Chacko vs Koshi Varghese and Another

Menon, J.—The Plaintiff in O.S. No. 8 of 1119 of the District Court of Kottayam is the Appellant before us. The suit was for a declaration of title and an injunction restraining the Defendant from entering the plaint property. The suit was decreed by the trial Court but was dismissed in appeal and the Plaintiff was directed to pay the costs of the Defendant. During the pendency of the suit the Plaintiff was appointed receiver of the plaint property arid functioned as such.

The Defendant filed an execution application for costs and certain amounts stated be due from the Plaintiff in respect of the period of his receivership, and died thereafter. Two of his heirs put in a petition for being impleaded as additional Defendants, 2 and 3 and prayed for permission to continue the execution.

The Plaintiff objected on various grounds to the impleading and the continuance of the execution and his objections were negatived by the Court below. The learned District Judge in the order under appeal said:

the Petitioner are permitted to come on record and continue the execution proceedings.

The only contention urged before us by the learned Counsel for the Appellant was that the lower Court was wrong in not holding that a succession certificate was essential in view of Section 214, Indian Succession Act, 1925, before the Respondents could seek any relief before the Court. The relevant portion of Section 214 reads:

(a) No Court shall pass a decree against a debtor of a deceased 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

(iii) a succession certificate granted under part X and having the debt specified therein.

(2) The word "debt" in Sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purpose:

In - ''Tejraj Rajmal v. Rampyari AIR 1939 Nag 528 V 25 (A), a decree-holder applied for execution of his decree dated 13-3-1933 on 28-4-1934 and died thereafter on the 12-5-1934. His widow applied for her name to be substituted for that of her deceased husband on 30-6-1934 stating that her husband was dead and that she was his heir. She did not produce any succession certificate and her contention that such a certificate was not necessary was dealt with as follows by Stone, C.J. and Vivian Eose J:

Now it is said she was not proceeding on her application but on his application and therefore Section 214(1)(b) does not apply; - ''Mahomed Yusuf v. Abdur Rahim 26 Cal 839 (B) and - ''Kshetra Mohan v. Azibullah Mea AIR 1920 Cal 580 V 7 (C), which simply follows 26 Cal 839 (B). 26 Cal 839 (B), dissents from a Full Bench judgment reported in - ''Fateh Chand v. Muhammad Bakhsh 16 All 259 (D). The latter case, however, appears to us to be distinguishable, for it was concerned with a suit, not with execution proceedings. Since the new Rule, Order 22 Rule 12, was made the old question whether execution proceedings abate on death has been set at rest. Abatement does not apply to execution proceedings.

The result of that is however that the heirs need not take steps for substitution under Order 22, Rule 3 but may apply to carry on the proceedings or may file a fresh application. In other words, execution proceedings do not abate but live on and, as some one must take the next step and death terminates all agencies, the person entitled, i.e. the personal representative or heir, can come before the Court. That person when he comes will be claiming for himself, at least where he, or she is heir or beneficially interested.

The proper application is for leave to carry or (or proceed with) the pending execution proceedings. Such an application would fall within the words ''upon an application of a person, claiming to be so entitled''. To be so entitled'' means, as is plain from Section 214(1)(a) ''to be entitled to any part of the deceased''s estate.'' This widow claims to be so entitled and she makes an application which is necessary before the Court can proceed with a pending execution. The Court cannot, on that application, proceed with the execution unless a succession certificate is produced. The appeal is accordingly dismissed with costs.

The lower Court followed 26 Cal 839 (B). So did Middleton, J.C., in - ''Balmukand v. Gobind Ram AIR 1936 Pesh 17 V 23 (E).

In the light of the wording of Section 214 it is impossible for us to follow ''26 Cal 839 (B)'' and like Vakil, J.C. in - ''Ramji Ladha v. Horisanji Versalji AIR 1955 Kutch 6 V 42 (F), we are Inclined to adopt the reasoning and the conclusion in AIR 1938 528 (Nagpur) , in preference to those adopted in '' 26 Cal 839 (B)'', and the decisions that follow that judgment.

This appeal has hence to be allowed and is hereby allowed with costs.

The Respondents'' learned Counsel submitted that even if a succession certificate is required as laid down in AIR 1938 528 (Nagpur) , It will not be required in respect of all this amounts covered by the application for execution but only in respect of that portion of that application which relates to the costs awarded by the decree.

This is not a matter which was agitated before the learned District Judge and in view of that we can only leave it open for determination when a succession certificate in respect of the admitted portion of the amount sought to be recovered is produced and its adequacy is questioned before the Court below.