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Employment Officer Vs. Sevarinathan - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 280 of 1982
Judge
Reported inILR1985KAR317
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2) and 2(14) - Order 21; Indian Succession Act, 1925 - Sections 374 and 375
AppellantEmployment Officer
RespondentSevarinathan
Advocates:Sona G. Vakkund, HCGP
DispositionRevision allowed
Excerpt:
.....certificate will not amount to a 'decree' or an 'order' within the meaning of the code of civil procedure and is not executable under order 21.;(b) indian succession act, 1925 (central act no. 39 of 1925) sections 374 and 375 -- grant of succession certificate only empowers recovery of and taking action to recover sums.;under section 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, section 374 makes it clear that the grant or succession certificate does not amount to a decree or order within the meaning of the code of civil procedure...... section 375, makes it clear that the grantee of a succession certificate only gets the..........did not amount to a decree or an order, which could be executed under order 21 of the code of civil procedure.4. the lower court held that it amounts to an order, which was executable under order 21 of the code of civil procedure and rejected the contentions of thejudgment-debtor. hence, the revision.5. the word 'decree' has been defined in section 2(2) of the code of civil procedure, as --''decree' means the format 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 formal. it shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not.....
Judgment:
ORDER

Kulkarni, J.

1. This is a revision by the judgment-debtor against the order dated 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 asdeath-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 Order 21 of the Code of Civil Procedure.

4. The lower Court held that it amounts to an order, which was executable under Order 21 of the Code of Civil Procedure and rejected the contentions of thejudgment-debtor. Hence, the revision.

5. The word 'decree' has been defined in Section 2(2) of the Code of Civil Procedure, as --

''decree' means the format 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 formal. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 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 parties. Therefore, the grant of succession certificate will not amount to a 'decree' within the meaning of Section 2(2) of the Code of Civil Procedure.

6. The word 'order' has been defined in Section 2(14) of the Code of Civil Procedure, 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 Section 2(14) of the Code of Civil Procedure.

7. Under Section 372 of the Indian Succession Act, one will have to file an application for grant of successioncertificate. Section 373 of the Succession Act lays down the procedure. Section 374 of the Indian 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 dividend 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 Section 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, Section 374 makes it clear that the grant of succession certificate does not amount to a decree or order within the meaning of the 'Code of Civil Procedure.

8. Section 375(2) of the Indian 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 the form prescribed in Schedule VIII. Schedule VIII only empowers the grantee, asrepresentative of the deceased, to take action to recover the money.

9. Section 381 of the Indian Succession Act speaks about the effect of the certificate. It reads as -

'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 againstthe persons owing such debts or liable on such securities, and shall, notwithstanding any contravention of Section 370, or other defect, afford full indemnity to all such persons as regards all payments 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 Indian Succession Act', 1966 Edition on page 693 had said -

' This Section raises a conclusive presumption against the debtors that the person to whom the certificate is granted is entitled to receive the debt therein specified. It affords a 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 samein '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 in good faith. It affords 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 amountmentioned in the certificate to the grantee i.e., the decree-holder. Therefore, the only remedy available to the so called decree holder is to file a 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 a suit. No costs throughout.


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