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Shrinath Khandelwal Vs. Bishwanath Prasad - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 778 of 1964
Judge
Reported inAIR1972All321
ActsSuccession Act, 1922 - Sections 214(1)
AppellantShrinath Khandelwal
RespondentBishwanath Prasad
Appellant AdvocateKamta Nath Seth, Adv.
Respondent AdvocateG.C. Dwivedi, Adv.
DispositionAppeal allowed
Excerpt:
.....bars the institutions of execution proceedings by a person claiming on succession - heir of a decree holder who has filed executors application - can continue those proceedings - on death of decree holder - without obtaining succession certificate. - - the mysore case is clearly distinguishable on facts. moreover, this argument loses sight of the proposition of law that once a decree is satisfied in favour of the applicant in execution and the execution is struck off, any other person coming forward and claiming a right in respect of the same decree cannot revive the execution to the detriment of the judgment-debtor. so far as the judgment-debtor is concerned, his liability is fully discharged once the decree is satisfied and the execution is struck off. it is imperative that in..........no. 648 of 1964) against vishwa-nath prasad respondent on the basis of a pronote. on 8-8-1961 the decree-holder himself put the decree in execution. he. however, died on 18-11-1961. on 31-1-1962 the present appellant namely sri nath khandelwal applied that his name be substituted in place of the decree-holder and the execution be continued as he was the legal representative and legatee of the deceased by virtue of a will dated 6-5-1959 executed by the deceased. the judgment-debtor did not file any objection and, therefore, the appellant was substituted in place of the deceased decree-holder. thereafter on 10-5-1962 the judgment-debtor, however, filed an objection under section 47 of the code of civil procedure stating that sri nath khandelwal was not the successor of narain das deceased.....
Judgment:

M.N. Shukla, J.

1. The question of law which arises for decision in this appeal is whether the legal heir of a decree-holder who filed the execution application can on the latter's death continue those proceedings after being substituted or is it essential for him to obtain a succession certificate. The answer to this question would depend on the interpretation of Section 214(1)(b) of the Indian Succession Act.

2. One Narain Das obtained a decree No. 648 of 1964) against Vishwa-nath Prasad respondent on the basis of a pronote. On 8-8-1961 the decree-holder himself put the decree in execution. He. however, died on 18-11-1961. On 31-1-1962 the present appellant namely Sri Nath Khandelwal applied that his name be substituted in place of the decree-holder and the execution be continued as he was the legal representative and legatee of the deceased by virtue of a will dated 6-5-1959 executed by the deceased. The judgment-debtor did not file any objection and, therefore, the appellant was substituted in place of the deceased decree-holder. Thereafter on 10-5-1962 the judgment-debtor, however, filed an objection under Section 47 of the Code of Civil Procedure stating that Sri Nath Khandelwal was not the successor of Narain Das deceased decree-holder and that the earlier order substituting him was invalid, and that in any case the execution could not be proceeded with without succession certificate or probate being filed by Sri Nath Khandelwal. It appears that on 6-11-1962 Bai.i Nath Prasad claiming to be one of the heirs of the deceased decree-holder also filed objections wherein it was alleged that Baij Nath, Sri Nath Khandelwal, Parashotam Das, Ram Nath and Jagan-nath (nephews of the deceased decree-holder) were the heirs of the deceased and also legatees by virtue of the aforesaid will and hence they were entitled to be substituted as heirs. Evidence was recorded. A certified copy of the will dated 6-5-1959 was filed. Sri B. N. Seth, Advocate an attesting witness of the will was examined and he proved the will. By the order dated 27-11-1962 objections were dismissed but the appellant Sri Nath Khandelwal was required to file a succession certificate or probate of the will and it was ordered that the execution court would not proceed until the probate or succession certificate was filed. The present appellant filed an appeal against this order and contended that the impugned order was erroneous in law inasmuch as it directed him to obtain a succession certificate as a condition precedent to the continuance of the execution proceedings. The lower appellate court dismissed the appeal and affirmed the order of the executing court. In these circumstances the appellant has filed the present appeal in this Court.

3. I have heard the learned counsel for the parties who have relied on a number of authorities in support of their respective contentions. They have not been able to refer to any direct authority of this Court on this point. On behalf of the appellant reliance was placed on Tejraj Rajmal v. Bampyari. AIR 1938 Nag 528; Rarnii Ladha v. Harisanghii Varsalji, AIR 1955 Kutch 6; T. Chacko v. K. Varghese, AIR 1956 Trav-Co 183 and P. L. Basappa v. Siddamma, AIR 1966 Mys 198. The leading case in support of the appellant's contention is the Nagpur decision, though it does not contain elaborate reasonings. The Cutch case sets out the reasoning in some detail. The Travancore Cochin case merely follows the Nagpur and Cutch decisions on the point. The Mysore case is clearly distinguishable on facts. From the summary of facts given in that decision it seems that there the decree-holder himself was not able to file the execution application and it was his widow who put the decree into execution. In those circumstances it was held that Section 214 of the Indian Succession Act applied to the facts o' the case and the execution could not proceed without production of the succession certificate.

4. If the above authorities are analysed they disclose two main reasons for holding that on the death of the decree-holder his legal representative cannot continue the execution proceedings by mere substitution of his name without obtaining a succession certificate. The first ground mentioned is that the fundamental object of making provision for the production of a certificate of succession in Section 214 is to protect the interests of a debtor making payment to persons claiming to be entitled to the effects of the decree-holder. In case the production of succession certificate is not insisted on, the judgment-debtor can always apprehend a danger of being forced to- make payment twice or even more to other claimants of the decree-holder. The ratio of the decisions is that it is for safeguarding the interest of the judgment-debtor that the provision is made that the legal representative of the deceased decree-holder should not be allowed to execute a decree till he produces a certificate of succession. This argument does not appeal to me. In my opinion the apprehensions of the judgment-debtor on this score are somewhat illusory. Normally in all cases howsoever high, the stakes may be, if the original party who instituted or contested the proceedings dies the question of persons competent to continue those proceedings on the same footing is always settled by an enquiry in the nature of proceedings under Order 22 of the Code of Civil Procedure. I am unable to appreciate as to how the present case stands in any manner on a different footing from that of other cases. Once the matter of substitution of the legal heirs or representatives of the deceased decree-holder is decided after full contest and recording of evidence, the rights of the contestants are fully protected and there are no chances of a miscarriage of justice. Moreover, this argument loses sight of the proposition of law that once a decree is satisfied in favour of the applicant in execution and the execution is struck off, any other person coming forward and claiming a right in respect of the same decree cannot revive the execution to the detriment of the judgment-debtor. So far as the judgment-debtor is concerned, his liability is fully discharged once the decree is satisfied and the execution is struck off. The noteworthy feature in this connection, so far as the present case is concerned, is that a certified copy of the will was filed and one of the attesting witnesses namely Sri B. N. Seth, District Government Counsel, Mirzapur was examined to prove the will. I have already referred to the objections dated 6-11-1962 by Sri Baij Nath Prasad for himself and the other beneficiaries of the will who were the brother and nephews of the decree-holder. Thus, the only persons who could possibly set up a rival claim to being the heirs or legal representatives of the deceased had already joined the contest for substitution and their claims having been rejected by allowing the appellant to be substituted, no danger lurked that the judgment-debtor would be confronted in future with other persons claiming to be the legal representatives of the deceased. It is imperative that in cases like these the substitution proceedings must be conducted with meticulous care and abundant caution as was done by the executing court in the instant case.

5. The other argument in favour of the necessity of producing a succession certificate proceeds from a literal interpretation of me language of Section 214(1)(b) of the Indian Succession Act. It was contended by the learned counsel for the respondent that an application for substitution by the legal representative of the deceased decree-holder is in effect an application for proceeding with execution inasmuch as the original application for execution filed by the deceased decree-holder becomes the application of the person claiming to be entitled to be substituted. This argument can be sustained only if one can read into Clause (b) of Section 214(1) a complete bar to proceed with any application which is made by a person for continuing the proceedings. This inference is possible only when the word 'application' is given a wide meaning and the words 'claiming to be so entitled' are regarded as the key words of the section and are juxtaposed with 'application'. In my opinion the crucial words in Clause (b) are 'application' and 'to execute' and they should be read together to comprehend the real inhibition enacted by this provision. The central point to be investigated is as to whether the application by virtue of which the person claims to prosecute the execution proceedings becomes an execution application or is merely a substitution application and in the nature of an incidental application. The emphasis of the legislature seems to be on the words 'to execute'. When an application for substitution is made by the legal representatives of the deceased decree-holder, it is not an execution application as such. It is merely an ancillary application calculated to enable the appellant to continue the execution already set in motion. A distinction has, therefore, to be drawn between cases in which the decree-holder dies prior to applying for execution and cases where the execution is initiated by him but he dies during the pendency of the application and then his legal representative steps in and in substance asks for leave to continue those proceedings. In the former case a succession certificate may be required to be filed (though the point does not arise here and I need not decide it) but in the latter the language of the section does not warrant the necessity for obtaining any succession certificate. In other words, the words 'application of a person' occurring in Clause (b) of Section 214(1) must be construed to mean a substantive application and not an ancillary application of the type referred to above.

6. A Full Bench decision of this Court in Sheo Amber v. Allahabad Bank : AIR1959All179 which is directly in point can be a guide as to the meaning of the words 'application to execute'. In that case the decree-holder initially applied for execution of the decree. The Zamin-dari Abolition and Land Reforms Act intervened and hence he made another application subsequently on the 20th September, 1952 in which he specified the property which was still available in execution after enactment of the U. P. Zamindari Abolition and Land Reforms Act. The controversy arose as to whether the subsequent application could be treated as an 'application to execute' so as to be governed by the 12 years rule of limitation contained in Section 48 of the Code of Civil Procedure. The said application was obviously not in the form of the execution application as provided in Order 21, Rule 11 of the Code and it was held that this was not a fresh application for execution but merely an ancillary application to continue the execution application already pending with only such modifications as had been necessitated by the coming into force of the Zamindari Abolition & Land Reforms Act and hence no rule of limitation was applicable to such ancillary application. The identical words in Section 214(b) of the Indian Succession Act in my opinion must be given the same meaning. The effect of putting a contrary construction on these words would be that even though execution may have been commenced within limitation, when after the death of the decree-holder it is sought to be continued by his legal representative it will be deemed to be a fresh execution application and might become barred by limitation. Take a case, for instance, where the decree-holder files an execution application on the last date of limitation and dies thereafter. If the application for substitution made by his legal representative and, for continuing the execution proceedings is treated as substantive application it will obviously become time barred. Such interpretation would defeat the ends of justice and is not in consonance with the spirit and the language used in that section.

7. The leading case which enunciated the dictum which I have ventured to adopt was Mahomed Yusuf v. Abdur Rahim, (1899) ILR 26 Cal 839 wherein it was held that Section 4 of the Succession Certificate Act (VII of 1889) was not a bar to execution proceedings 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. The same principle was followed and more fully explained in Raghubir Narain Singh v. Raj Rajeshwari Prasad Singh : AIR1957Pat435 . It was observed-- :

'A reading of the provision of Section 214(1)(b) of the Indian Succession Act makes it perfectly 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. Execution proceedings having once been instituted by the original decree-holder his heirs can continue them without the production of the succession certificate irrespective of whether they are heirs by the principle of inheritance or by survivorship.'

Reference was made to the provisions of Section 4 (1) (b) of the Indian Succession Act 1889 which were in 'pari materia' with the provisions of Section 214(1)(b) of the present Indian Succession Act. That case was followed in a latter decision of the same Court in Lak Kumari v. Fulmati Kuer, : AIR1965Pat296 . In A Division Bench case of the Andhra Pradesh High Court in Mabukhan v. Rajamma : AIR1963AP69 , Chandra Reddy C. J., speaking for the Court summed up the position as follows-

'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. There is another aspect of the case which also Jeads to the same conclusion. Since the enactment of Order 22, Rule 2, C. P. C., the question whether execution proceedings abate on death has been set at rest. The execution proceedings - can go on despite the death of the decree-holder, provided that there is someone to take the necessary steps and enable the Court to continue the execution. In other words, in such circumstances a fresh application to execute the decree on behalf of the successor is not at all necessary. The heirs need not take steps for substitution under Order 22, Rule 2, C. P. C., but they merely apply to carry on proceedings. From this the conclusion becomes irresistible that an application made by the person claiming to be the heir and legal representative of the deceased decree-holder is not 'an application to execute' but an application to carry on the proceedings already pending.

9. Thus, in short my interpretation of Section 214(1)(b) of the Indian Succession Act is that the words 'application to execute' occurring therein refer to a substantive application by which execution proceedings were initiated and not to any other application which may be regarded as merely an ancillary application. Therefore, the bar enacted by the aforesaid provision does not apply to the application of a person who seeks to continue after the death of the original decree-holder the execution proceedings which were initiated by the decree-holder. Subsection (1) (b) of Section 214 only bars the institution of execution proceedings by a person claiming on succession and does not bar the continuance of the proceedings if the execution proceedings have already been commenced by the deceased. As I have already indicated in the earlier part of my judgment, the position would be different where the execution is initiated by a person other than the decree-holder who dies even before he is able to institute the execution. In that view of the matter the appellant was competent to continue the execution proceedings without obtaining a succession certificate and there was no bar to the Court proceeding with such execution.

10. In the result the order of the Court below is set aside and this appeal is allowed with costs.


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