1. The Executing Court has disposed of the execution petition on the ground that the present petitioner has not produced the Succession Certificate despite having availed sufficient time. Impugned order dated 4.1.2012 passed in Execution Petition No.1 of 2009 is challenged in the present petition under Article 227 of the Constitution of India.
2. As can be noted from the record, the Executing Court had directed the petitioner to produce the Succession Certificate as provided under Section 214 of the Indian Succession Act within 3 months from the order passed on 12.1.2011. As the petitioner could not comply with the said order, the impugned order has been passed dismissing the petition.
3. Heard learned advocates for the parties.
4. Learned advocate Mr. Vora urges that without going into the merits of the petition and further dilating the issue, if this Court can permit 6(six) months' time i.e. upto 31.12.2012 to produce the Certificate, the petitioner can have a contest on merit. He further submitted that on his failing to produce Succession Certificate for which he has already moved the High Court of Judicature at Bombay by way of petition No.1302 of 2011 in the testimonial and intested jurisdiction, for obtaining the Letter of Administration on 27.9.2011, this order will act too harsh for the petitioner, who is the judgment-creditor.
4. Other side has objected to such request on the ground that there was sufficient opportunity availed to the petitioner and no further time should be granted in view of the facts which are writ large on record.
5. On having found that the petitioner has already moved the Court for obtaining Succession Certificate before the High Court of Judicature at Bombay in the petition No.1302 of 2011 and, as he is hopeful of getting the same within 6(six) months, it is felt that last opportunity should be granted to him as only on the ground that he does not possess Succession Certificate, which the Court had directed him to produce, for the reasons which are beyond the control of the petitioner, he cannot be denied the right to pursue the execution petition after the decreetal fruits being come in his favour. Therefore, the order impugned is needed to be quashed and set aside. The Execution petition is restored setting aside the order of dismissal on the condition that the petitioner herein shall comply with the order of Executing Court dated 12.1.2011, on or before 31.12.2012. On his non-compliance within the stipulated period, the Execution petition shall stand dismissed and no further contest shall be available to the petitioner.
6. This petition stands disposed of in above terms.
(Ms.Sonia Gokani, J.) sudhir Top