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S. Rajyalakshmi Vs. S. Sitamahalakshmi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 273 of 1975
Judge
Reported inAIR1976AP361
ActsSuccession Act, 1925 - Sections 214 and 214(1)
AppellantS. Rajyalakshmi
RespondentS. Sitamahalakshmi
Appellant AdvocateG. Balaparmeswarirao and ;A. Poornachandra Rao, Advs.
Respondent AdvocateT.H.B. Chalapathi, Adv.
Excerpt:
- .....it becomes a debt. the decision does not answer the point raised in this case, viz., whether the costs decreed by the court would amount to debt under section 214 of the act. the learned counsel for the appellant further relied upon gian chand tandon v. pandit bahadar singh, . there also, the point for discussion was whether a displaced person could claim the benefit of section 31 of the displaced persons (debt adjustment) act and the debt which led to the decree must be a debt as defined in section 2(5) of the act. in that case, the word 'debt' is used in its restricted sense as defined in section 2(6). that is where the debt was incurred by the displaced person since he came to india after the partition, the judgment-debtor there could not claim protection under section 31(3) of the.....
Judgment:

1. This appeal is directed against the order passed by the Chief Judge, City Civil Court, Hyderabad dated 22nd day of April 1975, overruling the objections raised bye the judgment-debtor and directing the decree-holders to take further proceedings in the execution petition.

2. It was contended by the learned counsel for the appellant that without obtaining a succession certificate, the respondent could not proceed with the execution of the decree. To understand the above contention, it is necessary to state the brief facts which are as under :

3. The respondent filed O.S. No. 6/1973 before the Chief Judge, City Civil Court Hyderabad, for partition of the suit schedule properties. A preliminary decree was passed on 31-7-1973 and costs were awarded to the plaintiff against the lst defendant. On 5-3-1974 the sole plaintiff died and his legal representatives were brought on record on 2-9-1974. Thereafter, E.P No. 5/1975 was filed on 9-3-1975. The judgment-debtor filed a counter-affidavit in E.P. No. 5/75 stating therein that the decree-holder died in 1974 after passing of the preliminary decree. The legal representative, i.e. the present petitioner cannot execute the decree unless he obtains a probate or succession certificate from a competent Court. Therefore, the execution petition is not sustainable and is liable to be dismissed in limine. He also pleaded payment of some amounts with which we are not now concerned.

4. The lower Court passed the following order which is very short.

'This E.P. is filed to execute a decree for costs passed against the J.D. originally in favour of Smt. Sitamahalakshmi her mother-in-law. Smt. Sitamahalakshmi is since dead, her second son was brought on record as the legal representative in I.A. No. 206/74 on the basis of the will executed in favour of her second son. There is therefore no force in the contention that any succession certificate is required. I do not consider (1969) 2 Andh WR 479 as applicable t the facts of this case. The payments pleaded are uncertified and they cannot answer the claim made in this E.P. in any manner when the payments are not get certified within time. Objections raised in the counter are overruled. Attach by pro-order and notice to garnishee 24-6-1975.'

The learned counsel for the appellant contended that unless a succession certificate is produced the respondent cannot proceed with the execution petition. The lower court has not given any cogent reasons for overruling the objections raised by him. The order of the lower court already extracted only stated that as the second son was brought on record as a legal representative, it was held that no succession certificate is required. What is contended by the counsel for the appellant is that if the second son is brought on record as a legal representative in O.S. Proceedings, that itself is not sufficient if the L.R. wants to file the execution petition against the appellant. It is necessary that he must obtain and file a succession certificate in I.C.P. He relied upon Kotipalli Apparao v. Jakkam Venkanna, (1969) 2 Andh WR 479 wherein it was held by a Bench of this Court that 'Having regard to the aforesaid interpretation of the provisions of Section 214(1)(b) of the Indian Succession Act by a Bench of this Court, we have to agree with the Court below that it is not open to the petitioner to apply for execution of the decree obtained by the father without obtaining and producing a succession certificate as he claims by succession and not by survivorship.' Their Lordships were pleased to hold that 'unless a succession certificate is produced the execution proceedings should not be taken by a person who succeeded to the property on the basis of the will executed by the deceased decree-holder.' He further relied upon K. Laxmi Narayan v. V. Gopalaswami, : AIR1963AP438 where Kumarayya, J, (as the then was) was pleased to hold that Section 214(1)(b) would not apply to a case where the devolution of interest is by survivorship i.e., if the devolution was not by survivorship, the provisions of Section 215 will be adopted and a succession certificate would be necessary. In the above case the learned Judge was pleased to hold that when the devolution of interest was not by survivorship under Section 214(1)(b), no decree could be passed unless a succession certificate was produced. He also further referred to Akula Mabukhan v. Rajamma : AIR1963AP69 for the proposition that if the execution petition is already filed by the decree-holder that execution petition could be continued by the legal representative without producing a succession certificate, but once the execution petition is filed by the legal representative himself, the succession certificate cannot be dispensed with therefore, the lower court erred in holding that no succession certificate is required. The learned counsel for the appellant further contended that the debt contemplated under Section 214(1)(b) includes costs awarded also.

5. Section 214(1)(b) reads as under :

'No court shall ..........................................

(a) 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 of order for the payment of his debt, except on the production, by the person so claiming of-

(i) xx xx xx

(ii) xx xx xx

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

Sub-section (2) defines the word 'debt' as except rent, revenue or profits payable in respect of land used for agricultural purposes. Thus the learned counsel for the petitioner contended that except the rent, revenue or profits payable in respect of the land used for agricultural purposes all the amounts due to be recovered under the decree would be included in the word 'debt' and, therefore, even the costs are included in the debt. Therefore, if the costs are sought to be recovered by execution of the decree, it is necessary that a succession certificate must be obtained if the interest is not devolved upon him as a survivor. He strongly relied for the meaning of 'debt' on Muthupalaniapa Chettiar v. Alagammai Achi : AIR1961Mad438 and Gian Chand Tandon v. Pt. Bahadar Singh, . It can be straightway observed that there can be no dispute that if the legal representative is not person on whom the interest has devolved by survivorship it will be necessary for imprisonment to obtain a succession certificate to recover a debt in execution proceedings under Section 214(1)(b) if the E.P. itself is filed by him. On the other hand the counsel for the respondent contended that the debt mentioned in Section 214(1)(b) is a debt prior to the obtaining of the decree or order but it will not include costs which are awarded by the decree itself. Therefore, the controversy is whether in the instant case, which is only mean for recovery of the costs awarded by the decree the provisions of Section 214(1)(b) of the Indian Succession Act would be attracted or not. The learned counsel, as pointed out referring to sub-section (ii) of Section 214 of the Act, contended that except the rent, revenue or profits payable in respect of the land used for agricultural purposes, all other things were included in the debt including the costs payable under the decree. In Muthupalaniapa Chettiar v. Alagammai Achi, Rajamannar, Chief Justice, speaking for the Bench, was pleased to discuss whether the suit was filed for the recovery of the amount constituting an occupation debt as defined in the Malayan Ordinance 42 of 1948. After a careful consideration, their Lordships came to the conclusion that the amount recoverable there fell within the definition of a 'Debt'. In that case, the money was paid to the first defendant who was not entitled to it under the mistaken impression that the money was due to her. Thus there was an obligation on her part to refund the money. As the liability must be deemed to have arisen on the date of the payment itself, this application to refund was certainly incorporated during the occupation period because the payment was between the two dates 15-3-1942 and 5-9-1943 as contemplated under the Ordinance. It was further held by their Lordships that 'The term 'debt' no doubt, is commonly used to describe liabilities which have an origin in contract; but we see no reason why we should restrict the connotation of that term to such liabilities only. Anything due and payable is a debt. On this point, therefore, we agree with the leaned trial Judge that no amount can be recovered by the plaintiff from the first defendant even assuming that the first defendant was liable to repay the amount paid to her agent.' Therefore, their Lordships were pleased to hold that the amount paid under mistake is also debt, and the person receiving is under an obligation to refund the amount and, therefore, it becomes a debt. The decision does not answer the point raised in this case, viz., whether the costs decreed by the Court would amount to debt under Section 214 of the Act. The learned counsel for the appellant further relied upon Gian Chand Tandon v. Pandit Bahadar Singh, . There also, the point for discussion was whether a displaced person could claim the benefit of Section 31 of the Displaced Persons (Debt Adjustment) Act and the debt which led to the decree must be a debt as defined in Section 2(5) of the Act. In that case, the word 'debt' is used in its restricted sense as defined in Section 2(6). That is where the debt was incurred by the displaced person since he came to India after the partition, the judgment-debtor there could not claim protection under Section 31(3) of the Act. That is, if the debt were to be incurred before he came to India, that debt was prior and not the debt obtained after his coming to India. A restricted meaning of the word 'debt' was given there. It also postulated that the decree obtained for the debt must be for the debt prior to coming to India. Thus this judgment is not helpful to the appellant.

6. The learned counsel for the respondent on the other hand referred to Smt. Tarak Dasi v. Batta Krishna Roy, : AIR1964Cal42 and V.T.V. Ramanuja Swamy (died) v. Sri Ram Gnaneswar, : AIR1973AP38 . In Sm. Tarak Dasi v. Batta Krishna Roy, : AIR1964Cal42 a Bench of the Calcutta High Court was pleased to hold that the decree for costs is not a decree for debt. Therefore, no succession certificate is necessary to be obtained under Section 214(1)(b) of the At. A similar view was taken by Chinnappa Reddy, J, in V.T.V. Ramanuja Swamy v. Sri Ram Gnaneswar, : AIR1973AP38 . In that case, the point raised was that succession certificate was necessary only when a debt was sought to be recovered, but when the decree itself was only for costs, it was not a debt and no succession certificate was necessary. The learned Judge also referred to Sm. Tarak Dasi v. Batta Krishna Roy, the following the judgment in that case, was pleased to hold that no succession certificate is required for recovery of the costs awarded under the decree. In this case, also, as pointed out, the respondent has filed the execution petition to recover costs awarded under the decree. Therefore, Section 214 (1) (b) of the Act is not attracted and no succession certificate need be produced for the execution of the decree.

7. The learned counsel for the respondent further contended that the respondent was already brought on record as the legal representative after the preliminary decree was passed pending the final decree proceedings. Therefore, it is not necessary that he must obtain a succession certificate when he was already brought on record as a legal representative after the preliminary decree is passed and before passing of the final decree is not relevant. Whether a final decree could be passed without obtaining a succession certificate is not a point before me now. Here the execution petition is filed pending the passing of the final decree for the recovery of the costs warded by the decree. If it were to be a debt for which a decree is passed, a succession certificate was necessary to be obtained and produced. In this case the execution petition is filed to recover the costs awarded under the decree. Therefore, the point raised has no substance and is not relevant for the purpose of this appeal. I see no reason to interfere with the order of the lower Court. In view of the fact that no succession certificate is necessary to be obtained under Section 214 (1) (b) of the Act to execute the decree for costs, this appeal is dismissed. No order as to costs.

8. The appellant is directed to pay Rs. 600/- within three months from to-day and the remaining amount within two months thereafter.

9. Appeal dismissed.


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