The revision petitioners/legal representatives of Judgment Debtor have filed this civil revision petition as against the order dated 20.12.2007 in E.P.No.18 of 2007 in O.S.No.362 of 2004 passed by the learned District Munsif, Poonamallee in allowing the execution petition and ordering attachment by 30.1.2008.
2.The Executing Court, while passing orders in E.P.No.18 of 2007 on 20.12.2007, has observed that 'originally the execution petition had been filed by one Govindan Mandadi and pending execution petition, he had died and his legal heirs have impleaded themselves as petitioners and are the proceeding with the execution petition and since all the legal heirs have been impleaded, the Judgment debtors are bound to pay the amount specified in the execution petition and having suffered the decree, it is for the Judgment debtors to comply with the same and there is no merit in the contentions of the judgment debtors and hence attach by 30.01.2008 and resultantly, allowed the petition.'
3.The learned counsel for the revision petitioners/ legal representatives of Judgment debtors submits that the order of the Executing Court for a direction to attach by 30.01.2008 is illegal and that the decree has been obtained by the original plaintiff as against the father of the revision petitioners and the same cannot be proceeded against the respondents and that the petition filed by the legal representatives of the decree holder as against the petitioners is liable to be dismissed and also that the respondents who claim to be the legal representatives of the decree holder have not produced the succession certificate to establish their right over the suit claim and even without ascertaining the rights of the parties, the Executing Court has passed an order of attachment which is per se illegal and not warranted in law and these factual and legal aspects of the matter have not been adverted to by the Executing Court in the manner known to law which has resulted in miscarriage of justice and therefore, prays for allowing the civil revision petition.
4.Contending contra, the learned counsel for the respondents/legal representatives of decree holder contends that earlier the decree holder Govindan Mandadi has expired during the pendency of the execution petition and that his legal representatives have filed an application to get themselves impleaded and the same has been allowed and thereafter, they are proceeding with the execution petition and inasmuch as the original decree holder has expired during the pendency of execution petition, there is no need for his legal heirs to obtain a succession certificate and even in the absence of the succession certificate, they can proceed with the execution petition and therefore, there is no illegality committed by the Executing Court in ordering the attachment and therefore, prays for dismissal of the civil revision petition.
5.In support of the contention that an execution cannot be initiated by the legal representatives of the deceased decree holder without production of succession certificate as per
Section 214(1)(b) of Indian Succession Act, the learned counsel for the revision petitioner cites the decision in Basha Khan V. K.Selvaraj and others AIR 1999 Madras 374 at page 376 wherein it is among other things held that 'I find that no execution petition shall be proceeded (initiated with) without the production of succession certificate as contemplated under
Section 214(1)(b) of the Indian Succession Act. Hence, the order of the Court below cannot be interfered with, and this Revision is dismissed accordingly. No costs.'
6.He also relies on the decision in Smt.Kariyamma and others V. The Assistant Commissioner and Land Acquisition Officer AIR 1993 Karnataka at page 321 wherein it is laid down that 'it is mandatory that the legal representatives of the deceased decree-holder must obtain succession certificate before realising the decretal amount due to deceased decree-holder in an execution proceedings irrespective of the fact whether the legal representatives initiated execution proceedings at first instance or they come on record during the pendency of execution proceedings initiated by the decree holder, by virtue of the provisions of Order 21, Rules 10 and 11, Order 22, Rule 12 and
Section 47 read with Section 146 of C.P.C.' Also in the aforesaid decision, it is held that 'an execution application presented by the decree-holder does not come to an end with his death. The legal representative is entitled to apply for permission to bring himself on record in the place of deceased decree-holder in that execution case and to continue the proceedings not only under O.21, R.16 of C.P.C., but also under Section 146 of C.P.C.'
7.However, the learned counsel for the respondents relies on the decision of this Court in Marakkal and others V. Eswari Ammal and others 1989 MLJ Reports at page 274 wherein it is held that 'The legal representatives need not produce succession certificates to continue the execution proceedings initiated by the deceased decree-holder, and that the application for substitution could not be treated as a fresh application for execution so as to attract S.214 of the Indian Succession Act.' He also seeks in aid of the decision of Hon'ble Supreme Court in V.Uthirapathi V. Ashrab Ali and others AIR 1998 Supreme Court 1168 wherein it is held that 'Death of decree holder or judgment debtor does not result in abatement of execution petition and that the Rent Controllers Court can fix reasonable time for bringing LRs on record and Rule 25 of Rules made on 28.10.1974 fixing period of limitation for bringing LR's on record is not attracted.'
8.The learned counsel for the revision petitioners places reliance on the decision Basappa V. Siddamma AIR 1966 Mysore 198 wherein it is held as follows:
"There is hardly any doubt that the respondent's claim for a share in the decree amount is on the basis that she has also succeeded to the estate of the deceased. Therefore, she cannot proceed with the execution without the production of a succession certificate. I see no conflict between S.214 of the Indian Succession Act and S.8 of the Hindu Succession Act. The former lays down that no execution petition shall be proceeded with without the production of a succession certificate when a person claims a right in decree on the ground of succession, whereas the latter regulates the succession to the estate of a deceased male Hindu dying intestate. The Courts below, in my opinion, erred in thinking that the requirements of S.214 of the Indian Succession Act have been in any manner modified by S.8 of the Hindu Succession Act."
9.He also draws the attention of this Court to the decision in Nandlal V. Mahavir Kumar AIR 1974 Raj 189 wherein it is laid down as follows:
"The law makers have put two conditions for a joint decree-holder to exercise his right to execute the decree that the decree itself must not contain any condition which may debar one decree-holder to take over the execution proceedings and secondly that a person who wants to carry on the execution proceedings must do so only when the execution is for the benefit of all the decree-holders, or where any of them has died, for the benefit of the survivors and the legal representatives of the deceased. The right to take out execution does not arise out of this provision but it arises out of the decree passed by the competent Court. It simply provides that a single decree-holder has a right to take out execution proceedings if other decree-holders in whose favour the decree is passed are not in a position to join him, but it should be done only for the benefit of all, or, if any one of the decree-holders has died, then for the benefit of the survivors and the legal representatives of the deceased. This provision, therefore, does not come in conflict in any manner with the provisions of
Section 214 of the Indian Succession Act which, no doubt, creates a bar for carrying out the execution without obtaining the succession certificate if the decree-holder died. That provision can apply only when there is only one decree-holder and after his death the execution can be taken out or carried out by his legal representatives alone who under the decree have no right to take out execution proceedings unless they have stepped in the shoes of the decree-holder by obtaining a succession certificate."
10.It is to be pointed out that
Section 214 of the Indian Succession Act requires the production of succession certificate at any time before a decree is passed. However, where an execution application has been filed already by the deceased in his life time, the same can be continued by his legal representatives about whom there is no contest, without obtaining a succession certificate as per decision Rukaiyabibi V. Vohra Abdul Bhai Isufally, 1977 Guj LR 164. The necessity of obtaining succession certificate cannot be waived by the parties as it is a statutory requirement for the passing of a decree. The obligation is not one merely in favour of the debtor but is also in favour of those interested in the deceased's estate, because for the reason that the Section requires that money forming part of the estate should only be paid to the person who has been considered as a proper representative to act for the estate as per decision Abdul Majit V. Shamsher Ali AIR 1940 Bom 285. Indeed, the term "succession" does not take in devolution by survivorship as in the case of a Hindu joint family governed by the Mitakshara and a succession certificate is not a necessary in the case of a claimant to a debt by survivorship as per decision Sheetal Chandra V. Lakshinanee, ILR 26 Cal 15. As per
Section 214(1)(b) of the Indian Succession Act, the terms "application to execute" point to a substantive application by which execution proceedings were initiated and not to any other application which may be considered as merely an ancillary application. Hence, the bar indicated by the aforesaid provision does not apply to the application of a party who seeks to continue after the death of the original decree holder the execution proceedings which were initiated by the decree holder. Sub-section (1)(b) of
Section 214 only bars the institution of execution proceedings by a person claiming on succession and does not bar the continuance of the proceedings without obtaining a succession certificate, if the execution proceedings have already been commenced by the deceased. The position will be different where the execution is initiated by a person other than the decree holder who dies even before he is able to institute the execution as per decisions Shrinath Khandelwal V. Vishwanath Prasad 1971 AWR 801, at 805, 806 and Sankarabati Devi V. Pila Devi. Added further, when execution is started by the original decree holder on his death his heirs may continue the proceedings without succession certificate and
Section 214(1)(b) has no obligation to such a case as per decision Lal Kumar V. Fulmati AIR 1965 Patna 296. In S.Rajyalakshmi V. S.Sitamahalakshmi AIR 1976 AP 361 it is held that 'Where a execution petition is filed by the legal representative of the deceased decree holder for the recovery of cause only, no succession certificate is necessary.' Moreover, a nominee under an insurance policy need not obtain a succession certificate as per decision Mamtasen V. L.I.C. of India AIR 1981 Cal 283. Also where there is no dispute as to who are the policy-holders and legal representatives production of succession certificate is not necessary as per decision Arumugam V. L.I.C. AIR 1990 Bom. 255. In fact, the word "such" in
Section 214 clause (b) is vital and it points out to a debtor against whom a debt is due before the decree is passed. But it will not cover a decree for costs in regard to the pendency of the suit as per decision Khadim Husain V. Abdur Rahman 1956 All 575.
11.It is worth to recall the observation made by this Court in Ramnath Reddy V. Kuppusamy Mudaliar AIR (1971) 1 MLJ at page 246 wherein it is inter alia held that 'On a fair reading of sub.S.(1)(b) of
section 214, it has to be taken that the bar is only against institution of execution proceedings by a person claiming on succession, and does not bar the continuance of the proceedings by a person claiming on succession, and does not bar the continuance of the proceedings already initiated by the deceased. It is well established that in view of O.22,R.12, C.P.C. Execution proceedings cannot abate on the death of the petitioner and the legal representatives can therefore continue the proceedings without filing a separate execution petition, by substituting themselves under
Section 116 and O.21, R.16,C.P.C. Once the legal representative substitutes himself as the petitioner in the execution petition already filed by the deceased decree holder, the execution has to proceed and the legal representatives need not further prove that he is a person entitle to execute the decree against the particular debtor on succession. It cannot also be treated as a fresh application for execution by the legal representative claiming himself to be entitled to execute the decree. It appears, therefore, that it is only when the legal representative files a fresh application for execution,
section 216 will stand attracted and not when he seeks to continue the execution petition initiated by the deceased decree holder.'
12.On a careful consideration of respective considerations and bearing in mind of the fact that the legal representatives of the decree holder are continuing the execution proceedings, production of succession certificate is not necessary and in fact, they need not produce the succession certificate and in that view of the matter, the civil revision petition fails.
13.In fine, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Consequently, the order of the Executing Court in E.P.No.18 of 2007 in O.S.No.362 of 2004 dated 20.12.2007 is confirmed by this Court for the reasons assigned in this revision. Considering the facts and circumstances of the case, there shall be no order as to costs. Connected M.P. is closed.