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Ram Charan Vs. Kalian Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1896)ILR18All34
AppellantRam Charan
RespondentKalian Singh
Excerpt:
act no. vii of 1889 (succession certificate act), section 4(b) - execution of decree--application for execution made before production of certificate. - burkitt, j.1. this is an appeal in an execution of decree case. in the memorandum of appeal three grounds were set forth. of those three grounds the second and third were abandoned at the hearing; the first only was pressed. that objection is to the effect that the lower court had no power to proceed with the execution of the decree until a certificate under section 4(b) of act no. vii of 1889 had been produced. on a perusal of the record it appears that the respondent decree-holder did apply for execution of the decree without putting in a certificate, and that he stoutly contended that for certain reasons given by him, which are now admitted to be unsound, he was not bound to take out a certificate. it also appears that the respondent decree-bolder has since then taken the proper steps.....
Judgment:

Burkitt, J.

1. This is an appeal in an execution of decree case. In the memorandum of appeal three grounds were set forth. Of those three grounds the second and third were abandoned at the hearing; the first only was pressed. That objection is to the effect that the lower Court had no power to proceed with the execution of the decree until a certificate under Section 4(b) of Act No. VII of 1889 had been produced. On a perusal of the record it appears that the respondent decree-holder did apply for execution of the decree without putting in a certificate, and that he stoutly contended that for certain reasons given by him, which are now admitted to be unsound, he was not bound to take out a certificate. It also appears that the respondent decree-bolder has since then taken the proper steps to obtain a certificate, and I am informed that he now holds the necessary certificate. The Court below, wrongly, I think, held that, as the respondent had now taken all steps necessary to obtain a certificate, execution could proceed without the production of that certificate. In that matter I have no doubt that the Court below was wrong, seeing that the words of Clause (b) of Section 4 of Act No. VII of 1889 expressly prohibit an execution Court from proceeding to execute a decree where a certificate is required unless such certificate be produced. But here, although the Court has been wrong in its ruling as to the non-production of the certificate, I still see no reason to interfere with the order under appeal. That order is not an order directing execution to issue, but is an order overruling the objections made by the judgment-debtor. If the Court had gone on to direct that execution should issue, notwithstanding the non-production of the certificate, this appeal must have been allowed; but, as matters now stand, the appeal is premature, as no order has as yet been made, or at any rate, has been appealed against, by which the Court directs execution to proceed on the decree. It is still open to the respondent decree-holder, by production of the certificate, to cure the flaw which at present exists. It is not necessary that the certificate should be produced with the application for execution; it is sufficient if it be produced and tendered in Court at any time before the Court proceeds to pass an order for the execution of the decree. Such is the law laid down by the Calcutta High Court in Brojo Nath Surma v. Isswar Chundra Dutt I.L.R. 19 Cal. 482 and by this Court in Mangal Khan v. Salim-ullah Weekly Notes 1893 p. 197. I fully concur in the rate laid down in those cases and in the reasoning by which it is (supported. The object of the appellant here, as I understand it, is to have the application for execution rejected because it was not accompanied by a certificate. Although I do not agree with the ruling of the lower Court, as noted above, I still am of opinion that there are no grounds for rejecting the application for execution. The respondent has a locus poenitentice to put in the certificate before the Court proceeds to order execution, and if that be done the only objection to the execution disappears.

2. I therefore dismiss this appeal, but I make no order as to costs.


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