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K.T. Thimme Gowda Vs. Thimme Gowda and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 2169 of 1980
Judge
Reported inAIR1986Kant204; ILR1986KAR908
ActsCode of Civil Procedure (CPC), 1908 - Sections 47; Succession Act, 1925 - Sections 214(l)
AppellantK.T. Thimme Gowda
RespondentThimme Gowda and anr.
Appellant AdvocateM. Rariga Rao, Adv.
Respondent AdvocateA.N. Satyanarayana, Adv.
Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. sections 386 & 378: [v. jagannathan, j] appeal against acquittal - appellate court has got power to re-appreciate and reweigh evidence and come to its own conclusion. indian evidence act,1872[c.a.no.1/1872]-- section 3: [v. jagannathan, j] appreciation of evidence - hostile witness held, his evidence cannot be ignored in totality. where the hostile witness is not supporting prosecution case in certain minor aspects which has no bearing on prosecution case, said portion of evidence can be rejected. part of evidence which supports prosecution case will have to be accepted......2. according to the learned counsel sri ranga rao, for the revision petitioner, both the decree-holders, who had obtained the decree, had died before the institution of the present execution proceedings, and that the present decree-holders, who claim to be the legal representatives of the original decree holders, cannot proceed with the execution, without obtaining a succession certificate as contemplated by s. 214 of the succession act. that the original decree-holders, who had obtained the decree, have died, is not disputed before me at all. 3. section 214 of the succession act reads as - '(i) 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.....
Judgment:
ORDER

1. This is a revision by judgment-debtor No. 6 against the order dt. 72-1980 passed by the Munsiff, Maddur, in Execution Case No. 127 of 1978, overruling his objections.

2. According to the learned counsel Sri Ranga Rao, for the revision Petitioner, both the decree-holders, who had obtained the decree, had died before the institution of the present execution proceedings, and that the present decree-holders, who claim to be the legal representatives of the original decree holders, cannot proceed with the execution, without obtaining a succession certificate as contemplated by S. 214 of the Succession Act. That the original decree-holders, who had obtained the decree, have died, is not disputed before me at all.

3. Section 214 of the Succession Act reads as -

'(I) 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, or-

(i) & (ii) ...........

(iii) a succession certificate granted under Part X and having the debt specified therein, or ..............'

Thus, it becomes clear that S. 214(1)(b) of the Succession Act puts a restriction on the powers of the Court to proceed with the execution unless a succession certificate is produced by the persons claiming to be the legal representatives of the original decree-holders. The wordings in S. 214(1)(b) of the Succession Act are clear enough to show that the executing Court should not proceed with the execution unless the persons claiming to be legal representatives of the original decree-holders produce the succession certificate.

4. In the Succession Act, 1925 by P. L. Paruck, Fifth Edition by Sri J. L. Joshi 1966, on page 457, it is held as-

'This sub-section prohibits the Courts from proceeding to execute the decree unless a succession certificate is produced. A decree obtained by a person trading as a firm cannot be executed by his son without the production of a certificate. Application for execution may be made without the certificate but no proceeds will be issued until the certificate is produced. If the decree is in favour of two persons and one of them dies the survivor can proceed to execute it without certificate, unless the debt due was part of the separate property of the deceased. This sub-section only bars the institution of execution proceedings by person claiming op. succession and does not bar the continuance of the proceedings if the execution proceedings have already been started by the deceased. His legal representatives may be substituted in his place without any succession certificate.'

Thus it becomes that if an execution is sued out by the persons claiming to be the legal representatives of the original decree holder, what the executing Court should do is that it should not issue process or proceed further with the execution until the succession certificate is produced.

5. A similar question came up for consideration in P. L. Basappa v. Siddanima. (1965) 2 Kant LJ 167 and this Court held that on the death of a Hindu who has obtained a money decree, his widow obtains the right to execute the decree by succession and therefore a succession certificate is necessary to the extent of her interest in the property. Similar principle has been reiterated in Lokamnia v. Nanjappa Gowda, ILR (1973) Kant 745

6. Even the finding of the lower Court regarding the judgment-debtors' plea under the Karnataka Debt Relief Act is also liable to be set aside. That question can be gone into afresh after a succession certificate is produced.

7. Therefore, under these circumstances, the order passed by the Court below is set aside in entirety. The revision is allowed. The matter is sent back to the Court below with a direction that it should give an opportunity to the present decree-holder to produce the succession certificate and it should not further proceed with the execution till a succession certificate is produced by them Till then, the, execution may be kept pending by the Court below.

8. Revision allowed.


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