J.M. Sheth, J.
1. This appeal is filed by the original defendant No. 1 (judgment-debtor) against the order passed by the learned Civil Judge, Senior Division, Mehsana, dated 8-3-1966, in Speeial Darkhast No. 14 of 1962. Original suit was Special Civil Suit No. 48 of 1949. It was an administrative suit for the estate of deceased Samsuddin Jivaji Raja. Partition also was claimed therein.
2. In the course of the final decree in that suit, the parties entered into a compromise, wherein certain properties were allotted to the heirs and in lieu of certain properties allotted to the defendants, it was decided and agreed upon that defendants Nos. 1 and 3 should pay Rs, 30,000/- to plaintiffs Nos. 1/1 to 1/4, 2/1 to 2/5 and others as mentioned in para 4 of Ex. 3, within two month of the date of the compromise. Consequent upon the failure of defendants Nos. 1 to 3 to abide by the terms of the final decree, deceased Taiyabali Abdulkadar Raja filed the aforesaid Darkhast on 16-12-1962 for recovery of the amount with interest and costs. During the pendency of the said application, the decree-holder Taiyabali died. His heirs brought on the record proposed to continue the Darkhast as legal representatives of deceased decree-holder. Contention was raised on behalf of defendant-No. 1, the judgment-debtor that these legal representatives cannot proceed with the execution application without filing a Succession Certificate as contemplated by the provisions of Section 214(l)(b) of the Indian Succession Act, 1925 (which will be hereinafter refer red to as 'the Act'). The Executing Court negatived this contention and hence original defendant No. 1 has preferred the present appeal to this Court.
3. Mr. Mangaldas M. Shah, appearing for the appellant, has contended that the Execution Court has committed an error in reaching the conclusion that such a succcssi n certificate was necessary only in case the legal representatives of deceased decree-holder had themselves filed an execution application for executing the decree obtained by the deceased decree-holder and the succession certificate was not necessary when they come on the record in an execution proceeding filed by the deceased decree-holder and they want to continue that execution application. In support of his submission, Mr. Shah has invited my attention to four decisions (1) Tejraj Rajmal Marwadi v. Rampyari A.I.R. 1938 Nagpur 528, (2) Tlwma Chacko v. Koshi Varghese A.I.R. 1956 Travancore-Coehin 183 (3) Shah Rainji Ladha v. Hothi Harisangji Versalji A.I.R. 1955 Kutch 6, and (4) Geneshmal v. Smt. AnandKanwar . These four decisions, no doubt, lend support to the submission made by Mr. Shah.
4. Mr. M.I. Patel, appearing for the respondents-legal representa tivcs of the deceased judgment-creditor has invited my attention to the contrary view taken by several High Courts to which I will make reference at an appropriate stage.
5. Before I advert to the authorities cited at the Bar, I first propose to analyse the relevant part of Section 214 of the Act, which requires interpretation. It reads:
(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 decea sed 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, of--
(iii) a succession certificate granted under Part X and having the debt specified therein
It is an admitted position that the expression 'such a debtor' means a debtor of a deceased person in the centext of Clause (a) of Section 214(1) of the Act. Scrutiny of this Clause (b) of Section 214(1) of the Act, in my opinion, clearly indicates that the prohibition is regarding proceeding to execute a decree against such a debtor a decree or order for the payment of his debt, upon an application of a person claiming to be so entitled. Prohibition is against the proceeding upon an application to execute a decree. Can it be said in the instant case, that these legal representatives, who are brought on the record and want to continue the execution application which was already filed by the deceased decree-holder against the judgment-debtor, have filed an application to execute the decree? Application to execute the decree was already filed by the deceased decree-holder. They only want to continue that execution application which was already filed. The present case even stands on a stronger footing. Order to execute the decree was already passed many years back. It is only at a later stage when these legal representatives were brought on the record by virtue of application, Ex. 65, this objection came to be raised. It is also significant to note that there was no contest in this execution application that there were any other legal representatives of the deceased decree-holder. That position was made quite clear by the appellant's Advocate in the executing Court itself. There is, therefore, no possibility of any rival claimant coming forward which would entitle the judgment-debtor to be protected. Even apart from these facts of the instant case, in my opinion, the position of law should be in view of the plain language of Clause (b) of Section 214(1) of the Act, that it is only if the legal representatives of deceased decree-holder have to file an execution application, they would be required to produce a succession certificate as contemplated by that clause and no such certificate would be necessary if they merely want to continue the execution application which was already filed by the deceased decree-holder himself.
6. It is significant to note that by Rule 12 of Order 22 of the Code of Civil Procedure (which will be hereinafter referred to as 'the Code'), it is made clear that nothing in Rules, 3, 4 and 8 of Order 22 of the Code shall apply to proceedings in execution of a decree or order. It is, therefore, evident that the execution application will not abate on account of the death of a decree-holder.
7. If we now refer to the provisions of some of the Rules of Order 21 of the Code, the meaning of expression, 'on an application to execute a decree obtained by a decree holder' would be an execution application, meaning thereby, a fresh application filed by the legal representatives of the deceased decree-holder and not an application, which will be, in my opinion an ancillary application, to continue that execution application filed by the deceased decree-holder. Order 21, Rule 10 of the Code reads:
10. Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof.
It, therefore, deals with an application for execution, meaning thereby, an application to execute a decree. Sub-rule (1) of Rule 11 of Order 21 of the Code deals with, as to when an oral application is to be filed, and Sub-rule (2) of it deals with, as to when a written application is required to be filed. Rule 15 of Order 21 of the Code deals with application for execution by joint decree-holder. Rule 16 deals with application for execution by transferee of decree. Order 21, Rule 17 of the Code refers to the procedure to be followed on receiving application for execution of a decree. Rule 22 deals with notice to show cause against execution in certain cases.
8. Section 146 of the Code reads:
Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.
It has been held by the Supreme Court in one case, that this section covers a wider field than the field covered by Rule 16 of Order 21 of the Code. This section also refers to the application that may be made by a person claiming under another person. It will, therefore, include the case of an application to be filed by a legal representative of a deceased decree-holder. It is, therefore, evident that if a legal representative of a deceased decree-holder has to filein application to execute a decree, he can do it in view of the provisions of Section 146 of the Code. In the instant case, as said earlier, we are concerned with a case where an application to execute the decree was already filed by the deceased decree-holder. It cannot, therefore, be said that the legal representatives of the deceased decree-holder, who were brought on the record by application, Ex. 65, filed an application to execute the decree. They only want to continue the application filed by the deceased decree-holder to execute the decree, so such a proceeding, if there is any contest as to who are the legal representatives, that contest has to be decided by that Court in that proceeding. There could not, therefore, be any question of protecting the right of a judgment-debtor, if there be any rival claimant claiming also the interest under the decree on the basis of a legal representative of a decree-holder.
9. A Division Bench of the Nagpur High Court, in Tejraj Rajmal Marwadi v. Rampyari A.I.R. 1938 Nagpur 523, has taken the view suppor ting the submission made by Mr. Shah, observing:.Since the new Rule, Order 22, Rule, 12, was made the old question whe there execution proceedings abate on death has been set at rest. Abatement does not apply to execution proceedings. The result of that is however that the heirs need not take steps for substitution under Order 22, Rule 3, but may file a fresh application. In other words, execution proceedings do not abate but live on and, as some one must take the next step and death terminates all agencies, the person entitled, i.e. the personal representative or heir, can come before the Court. That person, when he comes will be claiming for himself, at least where he, or she, is heir or beneficially interested.
The proper application is for leave to carry on (or proceed with) the pending .execution proceedings. Such an application would fall within the words 'upon an application of a person claiming to be so entitled'. To be so entitled means, as is plain from Section 214(1)(a) 'to be entitled to any part of the deceased's estate.' 'This widow claims to be so entitled and she makes an application, which is necessary before the Court can proceed with a pending execution. The Court cannot, on that application, proceed with the execution unless a succession certificate is produced.
With due deference to the learned Judges, I may say that they have omitted to consider the important expression connected with that application, viz. to execute a decree. It is not each and every application which would require the production of such a certificate. It will be only an application to execute a decree. In the instant case, application to execute the decree was already passed by the deceased decree-holder. The legal representatives merely filed an ancilliary application to continue the execution proceeding already filed. In may opinion, in such case, these legal representatives would not be required to produce the succession certificate.
10. In Shah Ramji Ladha v. Hothi Harisangji A.I.R. 1955 Kutch 6, Mr. Vakil, Judicial Commissioner, has observed:.Sub-clause (b) provides that no Court shall proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor, a decree or order for payment of his debt. The phrase 'of a person claiming to be so entitled' has obvious reference to Sub-clause (a) and it means a legal representative of a decree-holder. Sub-clause (a) made provision for production of a certificate of succession as a pre-requisite to the Court passing a decree for payment of a debt due to a deceased creditor. Sub-clause (b) made provision for production of a certificate of succession by a legal representative for execution of a decree for payment of a debt passed in favour of a creditor who died since the passing of the decree.
There cannot be any dispute with those propositions. But he further observes:
It is apparent that Sub-clause (b) prohibits a Court from proceeding to execute a decree on an application of a legal representative unless he has obtained 3 certificate of succession.
It may, therefore, appear that when an application for execution is already made, the Court has not to proceed to execute on an application of a legal representative as an application by a legal representative is merely to substitute his name in place of the deceased decree-holder. But when a decree-holder who has applied for execution of his decree dies during the pendency of the execution proceeding, the Court cannot proceed to execute the decree upon that application for execution. It is true that Rules 3, 4 and 8 of Order 22, Civil P.C., do not apply to execution proceedings. It follows that on death of a decree-bolder, pending an application for execution filed, his legal representative can continue the execution proceeding by substitution of his name in place of the deceased decree-holder. An application for substitution is in effect an application for proceeding with execution on substitution and on substitution, the original application for execution filed by the deceased decree-holder becomes the application of the person claiming to be so entitled. In my opinion this is the proper interpretation of Sub-clause (b).
In my opinion, this reasoning of the Judicial Commissioner is fallacious. Application filed by the legal representatives is to continue the execution proceeding already filed by the deceased decree-holder. It is not an application to execute a decree. It is only an application to execute a decree if filed by such a legal representative of a deceased decree-holder, that would require the production of a succession certificate. Another reason for coming to this conclusion shown by the Judicial Commissioner is:
It will be seen that the object of making provision for production of a certificate of succession in Section 214 was-to protect interest of debtors making payment to persons claiming to be entitled to the effects of decree-holders, since deceased. It was therefore provided in Sub-clause (a) that a decree should not be passed in favour of a legal representative till he produced a representation certificate. It was further provided that a legal representative of a deceased decree-holder should not be allowed to execute the decree till he produced a certificate of succession. When these provisions were made in the interests of debtors and judgment-debtors, it cannot be accepted that the legislature did not make any provision in the interest of judgment-debtors when a decree-holder died after he had filed an application for execution.
This reasoning also is not corrects. In an execution application already filed by the decree-holder, when he dies and his legal representatives are to be brought on the record, an inquiry will be made as to who are the legal representatives. It is only after making an inquiry as to who are the real legal representatives according to law, the legal representatives will be permitted to be brought on the record. There will, therefore, be sufficient protection to the interest of the judgment-debtors.
11. In Thomu Chacko v. Koshi Varghese A.I.R. 1956 Travancore-Cochin 183, a Division Bench of Travancore-Cochin High Court has merely followed the aforesaid decisions. There is no separate reasoning.
12. The reasoning adopted by a Division Bench of the Rajasthan High Court in Geneshmal v. Smt. Anand Kanwara A.I.R. 1963 Rajasthan 273, is practically similar to that adopted by Judicial Commissioner, K.utch, Mr. Vakil. Another reason advanced is:
Even in a case where an execution application is pending and his legal representative presents an application to be substituted in his place, it is, in substance, his application to the Court to execute the decree or order. The word 'application' in Clause (b), therefore, was not meant to convey the sense of only a fresh application for execution of the decree, but it also included an application for continuing the pending application for execution of the decree presented by the deceased decree-holder.
If the legislature had intended that Clause (b) of Section 214(1) of the Act would cover a case of an application to be given by such a legal representation in a pending execution application filed by the deceased decree-holder and it was to be given the meaning assigned by the Division Bench of the Rajasthan High Court, the position could have been made sufficiently clear by using the expression, 'Application to be given by the legal representative to continue a pending execution proceeding.' The aforesaid reasoning adopted by the Rajasthan High Court does not appeal to me.
13. The aforesaid decisions have differed from the view taken by a Division Bench of the Calcutta High Court as early as in year 1899 A.D., in Mahomed Yusuf v. Abdurrahim Bepari I.L.R. 26 Calcutta 839. The Division Bench of the Calcutta High Court had to deal with Section 4 of the Succession Certificate Act, 1889, which in this behalf was in pan materia with Section 214 of the Act. At pages 841 and 842, the relevant observations made are:
But there is another reason why we think that the contention of the appellant in this case should fall, and that is this, that Section 4, Sub-section (1), Clause (b), which is the only provision of the Succession Certificate Act under which the case could possibly come, can have no application to the present case. For that clause provides that no Court shall 'proceed upon the application of a person claiming to be entitled to the effects of a deceased person' to execute against a debtor of such deceased person a decree or order for the payment of his debt. Now, in the present case, the Court was not proceeding upon the application of a person claiming to be entitled to the effects of a deceased person, but was proceeding originally upon the application of the creditor himself, and it was only during the pendency of the execution proceedings that the original mortgagee, decree-holder, died, and his legal representatives, the present respondents, were brought on the record. In such a case we do not think that Section 4 of the Succession Certificate Act was any bar to the Court proceeding with the execution.
In my opinion, that section has been correctly interpreted by the Division Bench of the Calcutta High Court.
14. In Shrinath Khandelwalv. Bishwanath Prasad : AIR1972All321 , Shukla, J., has referred to the aforesaid authorities relied upon by, Mr. Shah before me and has made the following pertinent observations at page 322 in para 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 decrcee-holden 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 of 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 his 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 represent datives 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 their 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 he judgment-debtor is concerned, his liability is fully discharged once the decree is satisfied and the execution is struck off.
In para 5, it is observed:
The other argument in favour of the necessity of producing a succession certificate proceeds from a literal interpretation of the 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 of 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 # wide meaning and the words 'claiming to be 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.
In my opinion, the reasoning adopted by Shukla J., is quite sound and it appeals to me.
15. In. Ramancilha Reddy v. K.V. Kuppuswami Mudaliar : AIR1971Mad419 , Ramanujam, J., has accepted the view taken by the Calcutta High Court in I.L.R. 26 Calcutta 839, the view taken by the Patna High Court in : AIR1957Pat435 , and the view taken by Andhra Pradesh High Court in A.I.R. 1967 Andhra Pradesh 69, and has dissented from the view taken in the four authorities relied upon by Mr. Shah. At pages 421 and 422 after referring to the Nagpur decision in A.I.R. 1938 Nagpur 528, it is observed.But that in my view, does not make much difference in the interpretation of the scope of Section 214. Section 214 specifically bars the Court from proceeding with the execution on an application of a person claiming to be entitled to execute the decree. That does not contemplate the continuance of an existing execution application. 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. 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 146 and Order 21, Rule 16, Civil Procedure Code Once the legal representative substitutes himself as the petitioner in the execution petition already filed by the deceased decree-holder, the execution has to proceed and the legal representative need not further prove that he is a person entitled to execute the decree against the particular debtor on succession. It cannot also be treated as a fresh application for execution by the legal representative claiming himself to be entitled to execute the decree. It appears, therefore, that it 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.
It correctly lays down the position of law.
15.1. A Division Bench of the Andhra Pradesh High Court in Akula Mabukhanv. Rajamma : AIR1963AP69 , has taken a similar view. After referring to the provisions of Section 214 of the Act, Chandra Reddy, C.J., speaking for the Division Bench has posed a very material question and in that behalf observed:
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.
15.2. In a later decision of the Calcutta High Court in Benode Chatterjee v. Purnendu Nath Tagore : AIR1973Cal352 , Sarkar, J., has also taken a similar view and has relied upon the decision of the Allahabad High Court, referred to above, and dissented from the view taken by the Nagpur High Court.
15.3. A Division Bench of the Patna High Court in Raghubir Narain Singh v. Raj Rajeshwari Prasad Singh : AIR1957Pat435 , has taken a similar view. Dayal, J. speaking for the Division Bench, has, at page 436, 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 degree-holder. Execution proceedings having once been in solitude 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.
In its later decisions, : AIR1965Pat296 , the Patna High Court has taken the same view.
16. In my opinion, the view taken by the Calcutta High Court, Patna High Court, Allahabad High Court, Madras High Court and Andhra Pradesh High Court in the aforesaid decisions is the correct view. I follow that view and dissent from the view taken by the Nagpur High Court, Travancore-Cochin High Court, Rajasthan High Court and Kutch Judicial Commissioner. I therefore, hold that in a case where the execution proceeding has already been started by the deceased 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 order passed by the executing Court is, therefore, correct. The appeal therefore, fails.
17. As there is conflict in views taken by different High Courts and there is no decision brought to my notice of this Court or the Bombay High Court given prior to the date of bifurcation of the Bombay State, it will be proper and just to order each party to bear its own costs in this appeal.
18. Appeal is dismissed. Each party is ordered to bear its own costs in this appeal.