Chandra Reddy, C.J.
1. The problem that calls for solution in this C. M. S. A. which has been referred to a Bench because of divergence of judicial opinion, is whether the continuant of an execution petition filed by the decree-holder himself, by his legal representatives is hit at by Section 214(1)(b) of the Indian Succession Act (XXXIX of 1925).
2. The circumstances which have given rise to this appeal are these.
One Venkatanarasinga Rao obtained a decree in O. S. No. 43 of 1955 against the appellant-judgment-debtor on the file of the District Munsif's Court. Kavali, and it was transferred to the District Munsif's Court, Goofy for execution. Shortly thereafter, the decree-holder died and the present respondents applied to come on record as his legal representatives and continue the proceedings and the petition was ordered. When execution was proceeding, an objection was taken by the judgment-debtor, the appellant, that it was not competent for the legal representatives of the decree-holder to continue the proceedings without production of a succession certificate, as the matter falls under section 6 of the Hindu Succession Act and Section 214(1)(b) of the Indian Succession Act. This opposite was overruled by the trial Court in the view that Section 214(1)(b) of the Indian Succession Act was inapplicable to the case of continuance of an execution petition and that that section would be attracted only to a case of initiation of execution proceedings by the legal representatives of the decree-holder.
3. This was confirmed on appeal by the District Judge, Anantapur. In support of this conclusion, the learned District Judge placed reliance on Raghubir Narain Singh v. Raj Rajeshwari Prasad Singh : AIR1957Pat435 . In the result, the appeal was dismissed.
4. Dissatisfied with this decision, the judgment-debtor carried the matter in appeal to this Court. When it came on for hearing before our learned brother, Qamar Hasan J., he referred it to a Bench as there was conflict of opinion between the Patna High Court on the one hand and the High Courts of Nagpur, Travan-core-Cochin and Kutch on the other.
5. In support of this appeal, it is urged by Sri Krishnaiah learned counsel for the appellant, that Section 214(1)(b) of the Indian Succession Act governs even the continuance of an execution petition and that the view taken by the Nagpur High Court in Tejraj Rajmal v. Rampyari, AIR 1938 Nag 528 followed by the High Courts of Travancore-Cochin and Kutch in T. Chacko v. K-Varghese AIR 1956 Trav-Co, 183 and Ramji Ladha v. Harisangji AIR 1955 Kutch 6 embodies the sound principle of law. The question for consideration is, which of the two views is correct.
6. As the answer to this point turns upon the Interpretation of Section 214(1)(b) of the Indian Succession Act, it is profitable to extract it here-
'No Court shall --
xx xx xx xx (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, of -
(i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased; or
(ii) a certificate granted under Section 31 or Section 32 of the Administrator-General's Act, 1913, and having the debt mentioned therein, or
(iii) a succession certificate granted under Part X and having the debt specified therein, or
(iv) a certificate granted under the Succession Certificate Act, 1889, or
(v) a certificate granted under Bombay Regulation No. VIII of 1827 and if granted after the first day of May, 1689, having the debt specified therein.'
7. It is manifest from the language of Section 214(1)(b) that it is only an application for execution filed by a person that comes within the prohibition enacted In Section 214(1)(b). Could it be predicated that a person, who seeks to come on record as the legal representative of a decree-holder for the purpose of continuing that application, has applied for execution of the decree? In our opinion, the answer is in the negative. It looks to us that this clause contemplates initiation of execution proceedings by a person and not continuance of proceedings already started by the decree-holder.
8. This is the view expressed by the Calcutta High Court in Mohmed Yusuf v. Abdur Rahim Bepari ILR 26 Cal 833. It was laid down in that case that Section 4 of the Succession Certificate Act (VII of 1889), which is analogous to Section 214(1)(b) of the Indian Succession Act, was not a bar to execution proceedings instituted on a mortgage decree upon the application of the original mortgagee by reason of the original mortgagee having died during the pendency of the proceedings and his legal representatives who were substituted in his place not having produced any succession certificate.
Banerjae, J., who spoke for the Court remarked that Section 4 sub-section 1, clause (b) which was the only provision of the Succession Certificate Act under which the case could possibly come, could have no application to that case, since the Court was not proceeding upon the application of a person claiming to be entitled to the effects of a deceased person but was proceeding originally upon the application of the creditor himself. It was this principle that was applied by the Patna High Court in : AIR1957Pat435 . Observed Dayal J., who gave the opinion of the Bench :
'A reading of the provision of Section 214(1)(b) of the Indian Succession Act makes it prefectly clear that it only bars the institution of execution proceedings by a person claiming on succession and does not bar the continuance of the proceedings which had been instituted by the original decree-holder'.
9. Kshetra Mohan v. Azizullah Mea, AIR 1920 Cal 580 followed ILR 26 Cal 839. To the same effect is the principle contained in Balmuhand v. Gobind Ram AIR 1936 Pesh 17. In our judgment, the doctrine enunciated by the Calcutta High Court in ILR 26 Cal 839 which has been accepted as correct by the Patna High Court in : AIR1957Pat435 represents the correct view. We are, therefore, inclined to dissent from the opinion expressed in AIR 1938 Nagpur 528. There is no independent reasoning in AIR 1956 Trav-Co. 183. We regret that we are unable to share the view expressed by the Nagpur High Court and which was followed by the High courts of Travancore-Cochin and Kutch in the cases cited above. It follows that the judgments of the Courts below cannot be assailed and have to be affirmed.
10. In the result, the appeal is dismissed, butwithout costs.