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A. Ramaswami Vs. K. Venkamma - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 392 of 1961 and L.P.A. No. 140 of 1961
Judge
Reported inAIR1963AP135
ActsSuccession Act, 1925 - Sections 214
AppellantA. Ramaswami
RespondentK. Venkamma
Appellant AdvocateN. Rajeswara Rao and ;J.A. Narasimham, Advs. in A.A.O. 392/61 and ;C. Padmanabha Reddy, Adv. in L.P.A. 140 of 1961
Respondent AdvocateN. Rajeswara Rao and ;J.A. Narasimham, Advs. in L.P.A. No. 140/61, ;C. Padmanabha Reddy, Adv. in A.A.O. 392/61
DispositionAppeal dismissed
Excerpt:
property - succession certificate - section 214 (f) (b) of succession act, 1925 - decree for sale of mortgage property obtained against appellant - decree-holder died - appeal to decide whether application of legal representative maintainable without succession certificate under section 214 - debt contemplated by section 214 would not constitute decree for enforcement of mortgagee's right as it is not decree for debt - decree for sale of mortgage property not covered by section 214 - held, application was maintainable without succession certificate. - - 12. thus, there is a strong current of authority in favour of the opinion that section 214 does not govern decrees for enforcement of mortgage rights......the question as to whether a succession certificate should be obtained under section 214 of the indian succession act (39 of 1925) by the legal representatives of the decree-holder when they seen to execute the decree for sale of the mortgaged property.2. the facts leading up to this appeal lie in a narrow compass and are these: a decree was obtained by ore parvathamma against the appellant on the foot of a mortgaged executed on 21-4-1949 for rs. 20,000/-. a preliminary decree was passed or 26-3-57 for rs. 23,783-12-0 and this was followed up by a final decree for sale of the mortgaged properly on 14-12-1957 as the judgment-debtor did not make deposit of the amount due under the mortgage. sometime thereafter, the decree-holder levied execution in e.p. no. 60 of 1959 but she died in.....
Judgment:

Shandra Reddy, C.J.

1. This appeal preferred by the Judgment-debtor in O.S. No. 41 of 1956 on the file of the Subordinate Judge's Court, Anantapur, raises the question as to whether a succession certificate should be obtained under Section 214 of the Indian Succession Act (39 of 1925) by the legal representatives of the decree-holder when they seen to execute the decree for sale of the mortgaged property.

2. The facts leading up to this appeal lie in a narrow compass and are these: A decree was obtained by ore Parvathamma against the appellant on the foot of a mortgaged executed on 21-4-1949 for Rs. 20,000/-. A preliminary decree was passed or 26-3-57 for Rs. 23,783-12-0 and this was followed up by a final decree for sale of the mortgaged properly on 14-12-1957 as the judgment-debtor did not make deposit of the amount due under the mortgage. Sometime thereafter, the decree-holder levied execution in E.P. No. 60 of 1959 but she died in December, 1960. Thereupon, the present respondent filed E. P. No. 63 of 1961, which has given rise to this appeal, under Order 21, Rule 11 C.P.C. read with Order 22, Rule 3, C.P.C. as the legal representative of the de-ceased decree-holder.

3. The petition was resisted chiefly on the contention that the application was not maintainable without a succession certificate under Section 214 of the Indian Succession Act

4. This objection did not find favour with the trial Court which held that Section 214 was inapplicable to a decree for sale of the mortgaged property, it is this view of the learned Subordinate Judge that is canvassed in this appeal.

5. It is argued by Sri Rajeswara Rao, learned counsel for the appellant, that Section 214 covers all debts and does not make any distinction between a simple money debt and a mortgage debt and that a succession certificate is a pre-requisite to the filing of an execution petition by the legal representatives of a deceased decree-holder.

6. In support of this contention, he calls in aid Fateh Chand v. Muhammad Bakhsh, ILR 16 All 259 (FB).

7. We do not think that we can accede to this proposition. It is true that the case cited above countenances this proposition but we are not inclined to share the view expressed by the Allahabad High Court in that case. In our considered opinion, the debt contemplated by Section 214 of the Indian Succession Act would not govern a decree for the enforcement of the mortgagee's right as against the mortgaged property, as it is not a decree for debt. This is the view which the Madras High Court had taken in Ammanna v. Gurumurthy, ILR 16 Mad 64 and Palaniyandi Pillai v. Veerammal, ILR 29 Mad 77. These two rulings have stood the test of time for over half a century.

8. In ILR 16 Mad 64 it was ruled by a Bench of the Madras High Court that a succession certificate under Section 4 of Act VII of 1889, which corresponds to Section 214 or the Indian Succession Act 39 of 1925, was not necessary for obtaining a decree for foreclosure or sale by the heirs of the mortgagee, as, in such a case, the suit could not be regarded as one to recover the debt. In ILR 16 ALL 259 (FB), the ruling of the Madras High Court cited above was distinguished on the ground that the relief prayed for in that case was foreclosure. We do not think that that distinction is really valid.

9. In ILR 29 Mad 77, ILR 16 Mad 64 was relied upon and ILR 16 All 259 (F.B.) was distinguished. It was pointed out by the learned Judges in ILR 29 Mad 77 that the distinction made in the Full Bench case by the Allahabad High Court between suits for foreclosure and suits for enforcement of mortgage rights as against the mortgaged property could not be sustained and they referred in support of their conclusion to a passage in or. Ghose's law of Mortgage' (3rd Edition). ILR 29 Mad 77 also followed Baid Nath Das v. Shamanand Das, ILR 22 Cal 143, Mahomed Yousuf v. Abdur Rahim Bepari, ILR 26 Cal 839 arid Nan Chand v. Yenawa, ILR 28 Bom 630.

10. The above decisions were followed in Saw Chong Gye v. Hafiz Bibi, ILR 12 Rang 690: (AIR 1934 Rang 369) and by the Patna High Court in Basu Devanand v. Raghubir Saran, (S) : AIR1955Pat284 .

11. It is thus seen that the Madras, Bombay, Calcutta, Patna and Rangoon High Courts had taken the view that Section 214 of the Indian Succession Act (39 of 1925) was inapplicable to such decrees, dissenting from ILR 16 fill 259 (F.B.). No other case which has taken a contrary view has been cited to us.

12. Thus, there is a strong current of authority in favour of the opinion that Section 214 does not govern decrees for enforcement of mortgage rights. It may fie different with reference to a personal decree for debt. But, here, the personal remedy is not sought to be enforced. The mere fact that the personal remedy Is still available to the mortgagee would not make any difference. It is open to the judgment-debtor to raise such an objection as and when such remedy is sought to tie availed of. It follows that the contention urged on behalf of the appellant has to be put aside.

13. In the result, the appeal is dismissed with costs. L. P. A. No. 140 of 1961 :

14. For the reasons mentioned in C.M.A. No. 392 of 1961, this appeal is also dismissed. No costs.


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