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Peare Lal and ors. Vs. Jhabba Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1925All66; 82Ind.Cas.604
AppellantPeare Lal and ors.
RespondentJhabba Lal and anr.
Excerpt:
civil procedure code (act v of 1908), sections 2 and 47(3) - decree, execution of--dispute as to applicant being representative of party to decree--determination of question, whether decree--appeal--succession certificate act (vii of 1889), section 16--succession certificate, effect of. - .....was at first dismissed, but on a fresh application execution was allowed.2. the judgment-debtors appealed to the district judge on the ground among others that mt. saraswati alone was the heir of her mother mt. chandan kuar and that the appellants were therefore not entitled to join in executing the decree. the learned district judge has given effect to this contention and the appellants have filed the present second appeal to this court objecting to the execution application being dismissed against them.3. a preliminary objection is taken that no appeal lies and the appellant relies on the ruling in sheoraj singh v. aminuddin khan (1898) 20 all. 539. that ruling was passed under the old code of civil procedure and mr. agarwala remarks in his commentary (indian practice, 3rd.....
Judgment:

Daniels, J.

1. This is an appeal in execution proceedings. A decree for the recovery of a maintenance by the sale of immovable property on which the maintenance was charged was held by Mt. Chandan Kuar against the judgment-debtors-respondents. Mt. Chandan Kuar died on the 11th October, 1921, A succession certificate in respect of the decree was obtained jointly by the appellants who are her sons and Mt. Saraswati who was her daughter. On the strength of this succession certificate these parties applied jointly to execute the decree. In their first application they treated the decree as a preliminary decree and asked for the preparation of a final decree, but in the alternative they also asked for execution of the decree as it stood in case no final decree should be necessary. The application was at first dismissed, but on a fresh application execution was allowed.

2. The judgment-debtors appealed to the District Judge on the ground among others that Mt. Saraswati alone was the heir of her mother Mt. Chandan Kuar and that the appellants were therefore not entitled to join in executing the decree. The learned District Judge has given effect to this contention and the appellants have filed the present second appeal to this Court objecting to the execution application being dismissed against them.

3. A preliminary objection is taken that no appeal lies and the appellant relies on the ruling in Sheoraj Singh v. Aminuddin Khan (1898) 20 All. 539. That ruling was passed under the old Code of Civil Procedure and Mr. Agarwala remarks in his commentary (Indian Practice, 3rd edition, p. 189) that it requires reconsideration as it ignores Sub-section (3) of Section 47 and a number of rulings to the contrary which are cited in the commentary.

4. Sub-section (3) of Section 47 of the present Code in express terms includes a question arising between the parties as to whether any person is or is not the representative of a party, and in view of Section 2 of the Code the determination of such a question as between the decree-holder or a person claiming to represent the decree-holder and the judgment-debtor amounts to a decree and is appealable as such. The preliminary objection therefore fails.

5. On the merits the order of the learned District Judge cannot be upheld. The learned District Judge has not taken into account. Section 16 of the Succession Certificate Act which declares that a succession certificate duly granted by the District Court is conclusive against debtors of the deceased person. The section is so clear that it is really superfluous to cite any ruling in support of it, but Rupan Bibi v. Bhagelu Lal (1914) 36 All. 423 may instance a case in which effect has been given to the provisions of the section. It may be noted here that there is no contest between Mt. Saraswati and her brothers. The Judgment-debtors alone challenged the right of the appellants to join in executing the decree. In view of the Section 16 of the Succession Certificate Act it is not open to the judgment-debtors to raise this objection.

6. The respondents have in this Court attacked the right of the appellant to execute the decree on the ground that the appellants did not apply to be substituted for the deceased within three months of her death. Even if this was a case in which the preparation of a final decree was necessary this objection would be untenable. It is clear, however, from a perusal of the decree, which has been read to me, that the decree was not a preliminary decree but one which could be put in execution by applying for sale of the property. It is therefore governed by Order 22, Rule 12 and the three months period prescribed by Rules 3 and 11 of the Order does not apply to it. I dismiss the cross-objections with costs.

7. For reasons already given I allow the appeal and restore the order of the Munsif with coats in this Court and in the Court below.


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