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Aparti Panda Vs. Govinda Sahu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 259 of 1981
Judge
Reported inAIR1984Ori1
ActsSuccession Act, 1925 - Sections 214(1); Code of Civil Procedure (CPC) , 1908 - Sections 47
AppellantAparti Panda
RespondentGovinda Sahu
Advocates:G.N. Mohapatra and ;U.C. Mohanty, Advs.
DispositionRevision allowed
Cases ReferredCaledonian Rly. v. North British Rly. Co.
Excerpt:
.....of the provision of section 214(1)(b) of the 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-bolder. this clause 'applies to the case, where during the pendency of an application for execution, the decree-holder dies, and his legal representative presents an application to be substituted in his place to continue the execution of a decree or when a fresh application for execution is made by the legal representative of the deceased decree-holder, because the decree or order for payment of debt remains unsatisfied. , (1831) 5 ac 114. 7. it is also another well-known principle of construction that..........court. the question of law which arises for consideration is whether on the death of the original decree-holder in an execution proceeding, the legal heirs can continue the proceeding without being required to produce a succession certificate or production of a succession certificate is condition precedent for continuance of the execution proceeding. the decision on this point is dependent on the interpretation of section 214 of the succession act. the said provision is quoted herein below in extenso :--'section 214 proof of representative title a condition precedent to recovery through the courts of debts from debtors of deceased persons:-- (1) no court shall:-- (a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be.....
Judgment:
ORDER

G.B. Patnaik, J.

1. In this civil revision an interesting and important question, of law arises for consideration with regard to interpretation of Section 214(1)(b) of the Succession Act, 1925 particularly in view of the fact that the High Courts in India are evenly divided and there is no decision on the point either of this Court or of the Supreme Court. The question of law which arises for consideration is whether on the death of the original decree-holder in an execution proceeding, the legal heirs can continue the proceeding without being required to produce a succession certificate or production of a succession certificate is condition precedent for continuance of the execution proceeding. The decision on this point is dependent on the interpretation of Section 214 of the Succession Act. The said provision is quoted herein below in extenso :--

'Section 214 Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons:--

(1) No Court shall:--

(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof or

(b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming or,--

(i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or

(ii) a certificate granted under Section 31 or Section 32 of the Administrator-General's Act, 1913, and having the debt mentioned therein, or

(in) a succession rertificate granted under Part X and Slaving the debt specified therein, or

(iv) a certificate granted under the Succession Certificate Act, 1889, of

(v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted after the first day of May, 1889, having the debt specified therein:

(2) The word ''debt' in Sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes.'

2. So far as the fact of the present ease is concerned, one Siba Charan Sahu was the decree-holder in Money Suit No. 181 of 1976 in the court of Munsif, Jaipur and he levied the Execution Case bearing No. 89/77 to execute the decree passed against the judgment-debtor. On 4-4-1979 while the execution case was pending, Siba Charan Sahu died. On 17-4-1979 Gobinda Sahu, we of the distnat relation of Siba Charan Sahu was substituted in the execution case. The judgment-debtor then filed a petition under Section 47 of the Civil P. C. praying for dismissal of the execution case on the ground that the requirements of Section 214(1)(b) of the Succession Act has not been complied with and therefore, the execution case is liable to be struck down. The learned Munsif by his order dated 5-2-1981 overruled the objection raised on behalf at the judgment-debtor and hence the present revision has been filed by the judge mentdebtor.

3. Section 214(1)(b) has come up for consideration by different High Courts, One view is that 'Upon an application of a person claiming to be so entitled' used in Section 214(1)(b) would mean an original application and therefore if the decree-holder himself had filed an execution petition and dies during the continuance of execution petition, then the legal representatives can continue the same and it is not necessary for them to obtain a succession certificate to be entitled to continue the execution proceeding. The protagonists of this view are the High Courts of Allahabad, Calcutta, Madras, Gujarat, Delhi, Andhra Pradesh and Patna. The contrary view has been expressed by the High Courts of Nagpur, Travancore-Cochin, Rajasthan and Kerala. Since there is no decision of this Court on the point, it would be profitable to note one decision of each Court on the point, examine the reasonings of drfferent Courts and then find out which interpretation subserves the object and interest of Section 214 of the Succession Act. A bare perusal of Section 214 makes it abundantly clear that Sub-section (1)(a) of the said section relates to the jurisdiction of the Court in passing A decree against a debtor of a deceased person and Sub-section (1)(b) relates to the execution of a decree or order for pay-went of the debt against such a debtor, The object of the said provision obviously is to protect the debtor from vexatious proceedings and from being harassed at different times by different persons claiming to be the successors of the original creditor.

4. A learned single Judge of the Madras High Court in the case of Ramanatha Reddy v. K. V. Kupposwami Mudaliar, AIR 1971 Mad 419 on discussion of several case-laws on the point preferred to follow the Calcutta view reported in (1899) ILR 26 Cal 839 and held:--

'........... It appears, therefore, that if is only when the legal representative files a fresh application for execution Section 214 will stand attracted and not when he seeks to continue the execution petition initiated by the deceased decree-holder. The learned Judge further held:--

'On a fair reading of Sub-section (1)(b) of Section 214, it has to be taken that the bar is only against institution of execution proceedings by a person claiming on succession, and does not bar the continuance of the proceeding already initiated by the deceased............'

The learned Judge referred to the provisions of Order 22, Rule 12 of the Civil P. C-and held:--

'............ It is well established that in view of Order 22, Rule 12 execution proceedings cannot abate on the death of the petitioner and the legal representatives can therefore continue the proceedings without filing a separate execution petition, by substituting themselves under Section 148 and Order 21, Rule 16, Civil P. C............'

In the case of C. S. Loganathan v. P. L, Kapur, ILR (1971) 2 Delhi 175, Prakash Narain, J. interpreting Section 214(1)(b) of the Succession Act held--

'............ Section 214(1)(b) has no application when legal representatives and legal heirs have applied under Section 146, C, P. C. to continue the proceeding which had already been commenced by C, S. Loganathan (the original decree-holder). In the present case in executing the decree the court will not be proceeding upon the application of a person claiming to be entitled to the effects of a deceased person. It was proceeding originally upon the application of C. S. Loganathan (the decree-holder) himself and when he died during the pendency of the execution proceedings the bringing on record of the applicants would not mean that the court will be proceeding upon an application moved by them to execute the decree......'

The learned Judge further held:--

'............ The prohibition enacted in Section 214(1)(b) of the Succession Act does not apply to a person who seeks to come on record as a legal representative of a decree-holder for the purpose of continuing the execution application. No succession certificate would be necessary to continue the execution proceeding ......'

In the case of Sharinath Khandelwal v. Bishwanath Prasad, AIR 1972 All 321, it was held (at p. 334):--

'............ The words 'application to execute' occurring, in Section 214(1)(b) 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. Sub-section (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.'

In the case of Benode Chatterjee v. Purnendu Natb Tagore, AIR 1973 Cal 352, Sarkar, J. relied on the Allahabad view referred to supra and held at p. 353);--

'Regarding the second objection made on behalf of the judgment-debtor under the provisions of Section 214(1)(b) of the Succession Act the bar in may view, applies when persons claiming an succession themselves apply to execute a decree against a debtor for payment at recovery of the deceased's debt. But in the instant case no substantive, application was initiated by the heirs and legal representatives of the deceased decree-holder them-selves for execution of the said decree d/- 30th Jan, 1953. The application before me moved by the applicants is on Tabular Statement affirmed by the original decree-holder on 27th Jan, 1965, i, e., in continuation of the execution proceedings already initiated by the plaintiff-decree-holder, since deceased.'

Section 214(1)(b) of the Succession Act came up for consideration before the Gujarat High. Court in the case of Rukaiya Bibi v. Vohra Abdulbhai Isufally, (1977) 18 Guj LR 164. It was held in that case:--

'........... where the execution proceeding has already been started by the de-ceased decree-holder and during the pendency of that application he dies and his legal representatives who are brought on the record want to continue that execution proceeding it is not necessary for them to produce a succession certificate for continuance of that execution proceeding already initiated by the deceased decree-holder. Section 214(1)(b) of the Act does not come in their way............''

The said section had come up earlier far consideration before the Andhra Pradesh High Court in the case of Akula Mabu-Kham v. Barjamma reported in AIR 1963 Andh Pra 69. A Division Bench of the said Court held.:--

'It is only an application for execration filed by a person that comes within the prohibition enacted in Section 214(1)(b). It does not apply to a person, who seeks tocome on record as the legal representativeof a decree-holder for the purpose of continuing that application. Consequentlythe continuance of an execution petitionfiled by the decree-holder himself, by Mslegal representatives after the death ofthe decree-holder is not hit at by Section 214(1)(b) and the legal representative need not produce succession certificate to continue the execution.' (quotedfrom the headnote)In Para. 7 of the judgment, their Lordships gave the reasoning thus :-- '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 predicted 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.'

The Patna High Court in the case of Raghubir Narain Singh v. Raj Rajeshwari Prasad Singh.. AIR 1957 Pat 435, also observed (at- p. 436):--

'A reading of the provision of Section 214(1)(b) of the 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-bolder. 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.'

This view appears to have not been accepted by this Court in a decision reported in AIR 3957 Oissa 100 (Abhina Sahu v. Daitari Sahu) which will be discussed later. A subsequent Patna decision reported in AIR 1965 Patna 296 (Lal Kumari Devi v. Fulmati Kuer) follows the aforesaid Patna view.

5. Let me now examine the authorities taking a centrary view. The earliest case is that of a Bench decision of the Nagpur High Court reported in AIR 1938 Nag 528 (Tejraj Rajmal v. Rampyari). Their Lordships held:--

'The proper application is for leave tocarry on (or proceed with) the pendingexecution proceedings. Such an application would fall within the words 'upon anapplication of a person claiming to be soentitled'. 'To be so 'entitled' means, as isplain from Section 214(1)(a) to be entitled toany part of the deceased's estate'. Thiswidow claims to be so enlitled and shemakes en application, which is necessarybefore the Court can proceed with a pending execution. The Court cannot, on thatapplication, proceed with the executionunless a Succession certificate is produced ..............'

This view was followed by the High Court of Travancore-Cochin in the case of Thoma Chacko v. Koshi Varghese, AIR 1956 Trav.-Co 183. A Division Bench of the said Court held in that case --

'Where after filing execution applica-tion, the decree-holder dies and his heirs put in a petition for being impleaded 39 additional defendants and prayed for permission te continue the execution, succession certificate was essential in view of Section 214.'

In the case of Ganeshmal v. Smt. Anand Kanwar, AIR 1968 Raj 273 a Division Bench of the said High Court analysed the provision of Section 214 of the Succession Act and held fat pp. 275-276)':--'Thus, it is clear that Section 214(1)(a) comes into play at the stage where a suit is pending in a civil court and where a decree still remains to be passed; It would be proper to read Clause (b) of Section 234(1) in this context. This clause 'applies to the case, where during the pendency of an application for execution, the decree-holder dies, and his legal representative presents an application to be substituted in his place to continue the execution of a decree or when a fresh application for execution is made by the legal representative of the deceased decree-holder, because the decree or order for payment of debt remains unsatisfied. It enjoins upon the court that if an application for execution is made by the legal representatives of the deceased decree-holder, then the executing court shall not proceed upon an application of a person claiming on succession to be entitled to the effects of the deceased decree-holder, to execute a decree or order for payment of debt, except On the production by that person of one of the documents enumerated in the subsequent clauses. The use of the words claiming to be so entitled appearing in Clause (b) shows that the. Legislature meant this clause to be read in the context of Clause (a). These words were used to avoid repetition of the words 'claiming on succession to be entitled to the effects of the deceased person', appearing in Clause (a). If Clause (b) is read without the context of Clause (a), the word 'so' would become redundant and meaningless. The words so en-titled' mean 'claiming on succession to be entitled to the effects of the deceased per-son and nothing else.' Similarly the words 'such a debtor' appearing in Clause (b) mean a debtor of a deceased person used in Clause (a). Thus, Clause (b) has got to be read in the context of Clause (a) to understand it in its real sense.

6. Now, in our opinion the main purpose of Section 234. reproduced above, is to protect the debtor from vexatious proceedings and from being harassed at different times by different persons claiming to be the successors of the plaintiff or the decree-holder. Just as Clause (a) of Section 214(1) provides protection to a debtor and enjoins open a court not to pass a decree against him unless the person claiming to be entitled to the effects of the deceased plaintiff is able to obtain a succession certificate and produce it in the court. So also Clause (b). means to provide protection to the judgment-debtor against rival claimants, if any, to the effects of the deceased decree-holder. If this basic principle underlying the provisions of Section 214 is kept in view, then the natural interpretation of Clause (b) would be that no court shall proceed to execute; a decree or order for payment of debt against a debtor in case the decree-holder expires, unless the person claiming to be entitled to execute the decree in place of the deceased decree-holder obtains a succession certificate and produces it in the court. We see no reason why a mere substitution of a legal representative in place of the decree-holder should be enough in the case of the pending application for execution of the decree, and why the legal representative of a plaintiff should be called upon to obtain a succession certificate before a decree is passed in his favour. Similarly we see no reason why a person who claims to be the successor of the deceased decree-holder should be permitted to proceed with the execution application filed by the deceased decree-holder, but in case no application of the decree-holder himself is pending and the successor has to file a fresh application he must obtain a succession certificate.'

This point came up for consideration before the Kerala High, Court in the case ofSankaran Nair. Ramakrisbnann Nair v.Madhavi Amma Easwari Amma, AIR 1979Ker 231. It was held in the said decision(at p. 235):--

'............ If the purpose of Section 214(1) is to protect the interest of the debtor and to see that the real person entitled to succeed to the assets of the deceased alone is allowed 1o realise the debt there is no reason in saying that for the continuation of proceeding a succession certificate need be produced only in the former case and not in the tatter. If that be so, the word 'application' in Section 214(1)(b) should be interpreted to mean not only a fresh application for execution but also an application for continuation of the execution petition already filed. Such an interpretation gains strength from the. meaning given to the word 'proceed' in Chambers's Twentieth Century Dictionary 1977 Edn. at page 872. The word means to go on, to continue, to advance, to pass on, to begin and go on, to act according to a method, to go from point to, point ........ to take legal action......... From the context in which the word occurs in Section 214(1)(b) it would include not merely start ing of execution proceedings for the firsttime by the legal representative but alsocontinuation of pending execution proceedings on the application of the legalrepresentative. The context in which theword is used does not warrant the limitedmeaning given to it by the High Court ofCalcutta in Mahomed Yusuf v. AbdurRahim Bepari (1899) ILR 26 Cal 839 andin the other decisions which follow thatcase:'

The only decision of the Orissa High Court which was brought to my notice is that of Abhina Sabu v. Daitari Sahu, AIR 1957 Orissa 100. In that case the point for consideration was whether in a pro note executed, in favour of the karta of a joint Hindu family, on his death the money is due to the members of the family and his legal representatives, by succession or by survivorship, and whether Section 214 has any application. Das, J., held that, the money was due to the widow not by succession but by survivorship and therefore, it was not necessary for her to obtain a succession certificate before she could proceed to realise the amount by a suit. This decision, therefore, is not an the point which arises for consideration in the present case. It may not be out of place to take note of another decision of the Bombay High Court reported in AIR 1940 Bom 285 (Abdul Majid v. Shamaherali Fakruddin), That was a case where the suit had been originally instituted by the creditor himself and the creditor died during the pendency of the suit. It was held that after the legal representatives were brought on record under Order 22, Civil P. C. Section 214 of the Succession Act would apply and therefore, a Judge should insist upon taking a succession certificate by the legal representatives in consonance with Section 214 of the Act. Thus this case really is one interpreting Section 214(1)(a) of the Act and not Section 214(1)(b).

6. In order to arrive at the correct interpretation of Sub-section (b) of Section 214(1), it is necessary to find out the true meaning of the words 'upon an application of a person claiming to be 30 entitled to execute' used in Sub-section (b). If a literal meaning to the language used in Section 214(1)(b) is given, there cannot be any doubt that an application for substitution by the legal representative of the deceased is in effect an application for proceeding with the execution. It is the cardinal principle of construction that the courts should give effect to each and every word used in a statute by giving its natural and ordinary grammatical meaning. The words, phrases and sentences of a statute are ordinarily to be understood in there natural, ordinary and popular ,and grammatical meaning unless such construction leads to an absurdity or the context or object of the statute suggest a different meaning. In Grey v. Pearson, (1857) 6 HLC 61 Lord Wenslydale said :--

'In construing statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further.''

This passage was quoted with approval by Lord Blackburn in the case of Caledonian Rly. v. North British Rly. Co., (1831) 5 AC 114.

7. It is also another well-known principle of construction that statute must be so interpreted which would best serve the object of the statute. If the purpose of Section 214(1) is to protect the interest of the debtor and to see that the real person entitled to succeed to the assets of the deceased alone is allowed to realise the debt, there is no scope for interpreting Section 214(1)(b) in a manner other than In which it has been interpreted by the High Courts of Nagur, Rajasthan, Kerala arid Travancore-Cochin. To construe otherwise would mean to give a narrow interpretation to the word 'application' and to the words 'claiming to be so entitled to'. When a legal representative of the deceased creditor files an application for being substituted in the execution proceeding initiated by the creditor, the application is undoubted one for an execution of the decree and the application is being filed on the condition of 'being so entitled' and in my view it attracts operation of Section 214(1)(b) of the Succession Act. In the ultimate analysis therefore, for the reasonings given above. I would respectfully depart from the view expressed by the High Courts of Gujarat, Calcutta, Allahabad, Patna and Delhi and follow the view expressed by the High Courts of Nagpur, Travancore-Cochin, Rajasthan and Kerala.

8. I, therefore, hold that the execution case cannot proceed unless the substituted decree-holder Gobinda Sahu, produces a Succession Certificate in his favour. The Civil Revision is accordingly allowed and the order of the Munsif, Jajpur, dated 5-2-1981 in Misc. Case No. 39 of 1980 is set aside. As the opposite party has not entered appearance, there would be no order as to costs.


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