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Employment Officer, Mandya Vs. S. Sevarinathan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 280 of 1982
Judge
Reported inAIR1986Kant167; 1985(1)KarLJ153
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(2) and 2(14) - Order 21, Rule 1; Succession Act, 1925 - Sections 374, 375(2) and 377
AppellantEmployment Officer, Mandya
RespondentS. Sevarinathan
Advocates:Sona G. Vakkund, Govt. Pleader
Excerpt:
.....it all such persons as regards all payment, made, or dealings had in good faith in respect of such debts or securities to or with the person to whom the certificate was granted. it affords it full indemnity to the persons liable to pay the debts and in respect of the securities covered by the certificate to those who pay the same in good faith. the expression good faith is defined in the general. even if payment is made without due care and caution still if it is honestly paid, it will be payment good faith......and rs. 202/- towards arrears of salary due to the deceased miss arokiamary, sister of the decree-holder. as the said amount was not paid to the decree-holder he sued out execution.3. the judgment-debtor resisted that the succession certificate did not amount to a decree or an order, which could be executed under 0. 21 of the c.p.c.4. the lower court held that it amounted to an order, which was executable under o. 21 of the c.p.c. and rejected the contentions of the judgment-debtor. hence, the revision.5. the word 'decree' has been defined in s. 2(2) of the c.p.c. as -'decree' means the formal expression of an adjudication which, so far as regards the court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in.....
Judgment:
ORDER

1. This is a revision by the judgment-debtor against the order dt. 18-10-1979 passed by the Civil Judge Mandya in Execution Case 27 of 1979.

2. The decree holder obtained a succession certificate in respect of Rs. 4,200/- due as death-cum-retirement gratuity and Rs. 202/- towards arrears of salary due to the deceased Miss Arokiamary, sister of the decree-holder. As the said amount was not paid to the decree-holder he sued out execution.

3. The judgment-debtor resisted that the succession certificate did not amount to a decree or an order, which could be executed under 0. 21 of the C.P.C.

4. The lower Court held that it amounted to an order, which was executable under O. 21 of the C.P.C. and rejected the contentions of the judgment-debtor. Hence, the revision.

5. The word 'decree' has been defined in S. 2(2) of the C.P.C. as -

'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within S. 144, but shall not include.

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.'

The succession certificate does not conclusively determine the rights of the parties in the matter of disputes between the rights of the parties in the matter of disputes between the parties. Therefore, the grant of succession certificate will not amount to a 'decree' within the meaning of S. 2(2) of the C. P.C.

6. The word 'order' has been defined in S. 2(14) of the C.P.C. which reads as: -

' order means the formal expression of any decision of a Civil Court which is not a decree.'

Therefore, the grant of succession certificate does not amount to an order also within the meaning of S. 2(14) of the C.P.C.

7. Under S. 372 of the Succession Act, one will have to file an application for grant of succession certificate. S. 373 of the Succession Act lays down the procedure, S. 374 of the Succession Act reads -

'When the District Judge grants a certificate, he shall therein specify the debts and securities set forth in the application for the certificate and may thereby empower the person to whom the certificate is granted -

(a) to receive interest or dividends on, or

(b) to negotiate or transfer, or

(c) both to receive interest or dividends on, and to negotiate or transfer, the securities or any of them.'

Therefore, under S. 374, the grant of certificate only empowers the grantee of the certificate to recover interest or dividends. It does not amount to passing an order entitling the grantee to recover the amounts. Therefore, S. 374 makes it clear that the grant of succession certificate does not amount to a decree or order within the meaning of the Civil P.C.

8. 375(2) of the Succession Act reads -

'The Judge may, on application made by petition and on Cause shown to his satisfaction, and upon such terms as to security, or providing that the money received be paid into Court, or otherwise, as he thinks fit, assign the bond or other security to some proper person, and that person shall thereupon be entitled to sue thereon in his own name as if it had been originally given to him instead of to the Judge of the Court, and to recover, as trustee for all persons interested, such amount as may be recoverable thereunder.'

This makes it clear that the grantee of a succession certificate only gets the power to sue out an action for the recovery of, the money, Section 377 of the Act says that the succession certificate shall be issued in (he form prescribed in Schedule VIII. Schedule VIII only empowers the grantee its representative of the deceased, to take action to recover the money.

9. Section, 181 of the Succession Act speaks about the effect of the certificate. It reads:-

' Subject to the provisions of this Part the certificate of the District Judge shall, with respect to the debts and securities specified therein be conclusive as against the persons owing such debts or liable on such securities and shall notwithstanding any contravention of S. 370, or other defect, afford full indemnity it all such persons as regards all payment, made, or dealings had in good faith in respect of such debts or securities to or with the person to whom the certificate was granted.'

The learned author Sri J. L. Joshi in his The Succession Ac t. 1966 Edition on page 693 has said -

'This section raise a conclusive presumption against the debtors that the person to whom the certificate is granted is entitled it, receive the debt therein specified. It affords it full indemnity to the persons liable to pay the debts and in respect of the securities covered by the certificate to those who pay the same in good faith. The expression good faith is defined in the General. Clauses Act. Even if payment is made without due care and caution still if it is honestly paid, it will be payment good faith. It af6rds full indemnity to the banks under the Presidency Banks Act. If any one refuses to pay the debts to the holder of the certificate, he will become liable to pay interest. It entitled the holder to institute a suit to recover the debt.'

In this case, the judgment-debtor rightly or wrongly has been refusing to pay the amount mentioned in the certificate to tile grantee i.e., the decree-holder. Therefore, the only remedy available to the so, called decree-holder is to file it Suit for the recovery of the amounts mentioned in the succession certificate.

10. Therefore, under these circumstances, the order passed by the Court below is unsustainable. It is accordingly set aside. The revision is allowed. The execution petition is dismissed. If the grantee of the succession certificate i.e., the decree-holder wants to recover the amount in question, his only remedy is by filing it suit. No costs throughout.

11. Revision allowed.


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