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M.C. Sreedharan Vs. Pattieri Kumaran - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 3285 of 1978-E
Judge
Reported inAIR1981Ker51
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 15 and 63; Kerala Debts Relief Act, 1977 - Sections 2(4)
AppellantM.C. Sreedharan
RespondentPattieri Kumaran
Appellant Advocate T.S. Viswanatha Iyer,; P.S. Narayanan and; K.S. Menon
Respondent Advocate V.P. Mohankumar, Adv.
DispositionPetition dismissed
Cases Referred and Nandlal v. Mahavir Kumar
Excerpt:
- - subramonia pillai, (1980 ker ln 429): (air 1980 ker 216), the first contention of the petitioner is clearly unsustainable. section 214 of the succession act clearly says so. this safeguard is necessary in the interests of the judgment-debtor as well......j.1. the judgment-debtor is the revision petitioner. the application filed by one of the two joint decree-holders to revive an earlier execution petition and to proceed with the execution has been allowed by the lower court by the order challenged in this revision petition. two brothers obtained a simple money decree against the petitioner on 22-8-1966. both the decree-holders jointly filed an application to execute the decree and applied for attachment of the assets of the judgment-debtor. the attachment was allowed, but a claim petition filed by a stranger was allowed and the attachment was raised. consequently the decree-holders filed a suit under order xxi, rule 63, c. p. c. to set aside that claim order. that suit was allowed. the appeal filed by the claimants as a. s. 21 of 1973.....
Judgment:
ORDER

G. Viswanatha Iyer, J.

1. The judgment-debtor is the revision petitioner. The application filed by one of the two joint decree-holders to revive an earlier execution petition and to proceed with the execution has been allowed by the lower court by the order challenged in this revision petition. Two brothers obtained a simple money decree against the petitioner on 22-8-1966. Both the decree-holders jointly filed an application to execute the decree and applied for attachment of the assets of the judgment-debtor. The attachment was allowed, but a claim petition filed by a stranger was allowed and the attachment was raised. Consequently the decree-holders filed a suit under Order XXI, Rule 63, C. P. C. to set aside that claim order. That suit was allowed. The appeal filed by the claimants as A. S. 21 of 1973 was also dismissed on 31-10-1975. In the meanwhile the second decree-holder died. Thereafter the first decree-holder filed an execution petition on 29-10-1977 (numbered as E. P. 31 of 1978) to revive the execution application E. P. 257 of 1969 earlier dismissed on allowing the claim petition. In that application the first decree-holder contended that he is the legal representative of the deceased second decree-holder and he is entitled to proceed with the execution of the entire decree. Two objections were raised by the judgment-debtor, namely that the execution application dismissed after allowing the claim petition cannot be revived and secondly without filing a succession certificate to realise the amount due to the second decree-holder the application filed by the first decree-holder is unsustainable. The lower court did not accept this objection and it is against that this revision petition has been filed.

2. In the light of the decision in Govindan v. Chandunni, (ILR (1976) 1 Ker 695) and the decision in Mohammed Pathummal v. Subramonia Pillai, (1980 Ker LN 429): (AIR 1980 Ker 216), the first contention of the petitioner is clearly unsustainable. When an execution petition is dismissed on allowing a claim petition and later that order on the claim petition is set aside in a fresh suit, it is open to the decree-holder to move for reviving the execution petition.

3. The second point urged by the Counsel for the petitioner is that under Section 214 of the Succession Act any person who claims to succeed another who has obtained a decree to realise a debt can apply for execution only on production of a Succession Certificate. That position is clear. Section 214 of the Succession Act clearly says so. Though there is a difference of opinion between the various High Courts regarding the right of a person who comes forward on succession to continue an execution petition filed by his predecessor without a succession certificate, this Court has in Ramakrishnan Nair v. Easwari Amma, (1979 Ker LT 401) : (AIR 1979 Ker 231), taken the view that a succession certificate is necessary even to continue an execution petition filed by a decree-holder since deceased. I am in respectful agreement with that view. But this is not enough for the petitioner to succeed. In this case there are two decree-holders. Both of them had joined in the execution application. When one of them died the right of the surviving decree-holder to proceed with the execution will depend upon the provisions of Order XXI, Rule 15, C. P. C. and Section 214 of the Succession Act does not in any way touch that question. So far as he is concerned he can execute the decree in his own right. But he can do it only for and on behalf of himself and the legal representatives of the deceased decree-holder. The respondent has got a case that he is the only legal representative. It is unnecessary for me to decide that question in this enquiry. He seeks to execute the decree for himself and on behalf of the legal representative of the deceased decree-holder. So he can continue the execution petition in the light of Order XXI, Rule 15 C. P. C. I am supported in this conclusion by the decisions in Gopala Panicker v. Assanissa, (1972 Ker LT 394); Ramnibas v. Padumi Kalita, (AIR 1967 Assam and Naga 27) and Nandlal v. Mahavir Kumar, (AIR 1974 Raj 189).

4. No doubt under Order XXI, Rule 15 (2) sufficient safeguards have to be provided for, if only one of the decree-holders wants to apply for execution. This safeguard is necessary in the interests of the judgment-debtor as well. If the respondent is later found to be not the legal representative, the real legal representative should not later come forward to realise the amount from the petitioner. So in allowing the respondent to proceed with the execution, it is necessary to make sufficient safeguards to protect the interests of the defendant-petitioner and any other legal representatives, if any, The respondent will before drawing the amount from court file a personal security bond to reimburse the second decree-holder's share of the amount tbat may be realised in execution by him if anybody else succeeds in proving that he is entitled to the share of the second decree-holder.

5. The lower court has rightly found that the petitioner is not entitled to the benefits of Act 17 of 1977 as he does not satisfy the definition of the expression 'debtor' as denned in the Act. The aggregate of the debts due from him is found to be more than Rs. 3,000/-. That being so he will not be a debtor entitled to the benefit of Act 17 of 1977.

In the result, subject to the above observations, the Civil Revision Petition is dismissed. I make no order as to costs.


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