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Nandlal Vs. Mahavir Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberEx. First Appeal No. 8 of 1974
Judge
Reported inAIR1974Raj189; 1974(7)WLN165
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 15; Succession Act, 1925 - Sections 214
AppellantNandlal
RespondentMahavir Kumar and ors.
Appellant Advocate P.N. Datt and; N.L. Tibrewal, Advs.
Respondent Advocate N.M. Kasliwal, Adv.
DispositionAppeal dismissed
Cases ReferredRamnibas Agarwala v. Mt. Padumi Kalita
Excerpt:
.....214 and civil procedure code--order 21 rule 15 --joint decree--execution of--one of several decree holders dies--succession certificate not obtained by heirs of deceased--whether decree can be executed by surviving decree holders. ; this provision, therefore, does not come in conflict in any manner with the provisions of section 214 of the indian succession act which, no doubt, creates a bar for carrying out the execution without obtaining the succession certificate if the decree-holder died. that provision can apply only when there is only one decree-holder and after his death the execution can be taken out or carried out by his legal representatives alone who under the decree have no right to take out execution proceedings unless they have stepped in the shoes of the..........:2. a decree in a mortgage suit was awarded in civil suit no. 9 of 1967 in favour of the decree-holders. the decree-holders took out execution proceedings and the executing court ordered for the sale of the mortgaged property. the sale proclamation was settled, but before the property could actually be put to auction, one of the decree-holders, namely, surendra kumar sethi died on 30th of october, 1973. an application was moved by the heirs of deceased surendra kumar sethi to bring them on record. the judgment-debtor objected to this application, inter alia, on the ground that the execution cannot continue unless a succession certificate was obtained by the legal representatives of the deceased decree-holder under section 214 of the indian succession act. the surviving.....
Judgment:

Tyagi, J.

1. This is judgment-debtor's execution first appeal against the order of the Additional District Judge No. 1, Jaipur City, and it arises out of the following circumstances :

2. A decree in a mortgage suit was awarded in Civil Suit No. 9 of 1967 in favour of the decree-holders. The decree-holders took out execution proceedings and the executing Court ordered for the sale of the mortgaged property. The sale proclamation was settled, but before the property could actually be put to auction, one of the decree-holders, namely, Surendra Kumar Sethi died on 30th of October, 1973. An application was moved by the heirs of deceased Surendra Kumar Sethi to bring them on record. The judgment-debtor objected to this application, inter alia, on the ground that the execution cannot continue unless a succession certificate was obtained by the legal representatives of the deceased decree-holder under Section 214 of the Indian Succession Act. The surviving decree-holders, however, applied on 5th of January, 1974, that they had a right to continue the execution proceedings even without bringing on record the legal representativesof the deceased decree-holder and the bar put by Section 214 of the Indian Succession Act cannot deprive the surviving decree-holders of their right to continue the execution under Order 21, Rule 15 of the Code of Civil Procedure, Tarachand Sethi, one of the decree-holders, filed an affidavit that the execution of the decree by the surviving decree-holders will be in the interest of all the decree-holders including the legal representatives of the deceased decree-holder. Shri K.C. Sanghi counsel for the legal representatives of Surendra Kumar Sethi decree-holder also filed an application on 7th of January, 1974 that the continuance of the execution proceedings is in the interest of the legal representatives of the deceased decree-holder Surendra Kumar Sethi and, therefore, a date may be fixed for the auction of the mortgaged property. It appears that the judgment-debtor vehemently opposed the continuance of the execution proceedings because of the provisions of Section 214 of the Indian Succession Act. According to the judgment-debtor, that provision of the law created a bar for continuing the execution proceedings unless the legal heirs of the deceased decree-holder obtained a succession certificate.

3. The learned Judge rejected this objection of the judgment-debtor and ordered that the property attached may be auctioned. It is against this judgment of the executing Court that the present appeal has been filed by the judgment-debtor.

4. Mr. Datt appearing on behalf of the appellant urged that the provisions of Section 214 of the Indian Succession Act are mandatory in nature and, therefore, unless compliance has been made by the legal representatives of the deceased decree-holder and a succession certificate is obtained by them, no further action can be taken by them in the execution proceedings. His further contention is that the provisions of Order 21, Rule 15, Code of Civil Procedure are procedural and, therefore, they cannot override the mandate contained in Section 214 of the Indian Succession Act which is a substantive law. In support of this contention, reliance has been placed by him on Ganeshmal v. Smt. Anand Kanwar, AIR 1968 Raj 273.

5. Mr. Kasliwal, who has filed a caveat on behalf of the decree-holders, has, on the other hand, contended that there is no conflict between the provisions of Section 214 of the Indian Succession Act and Order 21, Rule 15 of the Code of Civil Procedure, and argued that the ratio of the decision of this Court in Ganeshmal's case, AIR 1968 Raj 273 cannot be applied to the circumstances of this case because in that case there was only one decree-holder and, therefore, after his death it was found necessary to avoid any future conflict between the rival claimants who could claim to execute the decree after the death of the original decree-holder to continue the execution proceedings.

6. The learned Judges, while examining the scope of Section 214(1)(a) and (b) of the Indian Succession Act and the principle on which the provision of the law was based, observed as follows :

'Now, in our opinion, the main purpose of Section 214, 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 upon 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.'

7. The fundamental principle on which the provisions of Section 214 rest do not come in conflict with the continuance of the execution of the decree in the circumstances of the present case because we find that the decree was passed jointly in favour of more than one decree-holder and each decree-holder in his own right could execute the decree provided the execution of the decree was for the benefit of alt the decree-holders or their legal representatives if some of the decree-holders died during the pendency thereof.

8. Order 21, Rule 15 of the Code or Civil Procedure does not confer any right on the decree-holders. It is only an enabling provision which provides as to how the decree passed jointly in favour of more persons than one can be executed if all of them are not in a position to join the execution proceedings. Rule 15 (1) unequivocally speaks that any one or more of such persons in whose favour a joint decree has been passed, may apply for the execution of the whole decree unless the decree imposes any conditions to the contrary and that the execution of the decree should be for the benefit of them all, or, where any one of them has died, for the benefit of the survivors and the legal representatives of the deceased.

9. The law-makers have put two conditions for a joint decree-holder to exercise his right to execute the decree that the decree itself must not contain any condition which may debar one decree-holder to take out the execution proceedings and secondly that aperson who wants to carry on the execution proceedings must do so only when the execution is for the benefit of all the decree-holders, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased. The right to take out execution does not arise out of this provision but it arises out of the decree passed by a competent Court. It simply provides that a single decree-holder has a right to take out execution proceedings if other decree-holders in whose favour the decree is passed are not in a position to join him, but it should be done only for the benefit of all, or, if any one of the decree-holders has died, then for the benefit of the survivors and the legal representatives of the deceased. This provision therefore, does not come in conflict in any manner with the provisions of Section 214 of the Indian Succession Act which, no doubt, creates a bar for carrying out the execution without obtaining the succession certificate if the decree-holder died. That provision can apply only when there is only one decree-holder and after his death the execution can be taken out or carried out by his legal representatives alone who under the decree have no right to take out execution proceedings unless they have stepped in the shoes of the decree-holder by obtaining a succession certificate.

10. In the Rajasthan case relied upon by learned counsel for the judgment-debtor appellant there was only one decree-holder and, therefore, in order to avoid future conflicts between the rival claimants the learned Judges held that the bar contained in Section 214 of the Indian Succession Act would apply to the circumstances of that case.

11. We are fortified in our view by a decision of the Assam High Court in Ramnibas Agarwala v. Mt. Padumi Kalita, AIR 1967 Assam 27 where the learned Judge has categorically laid down that the provisions of Section 214 of the Indian Succession Act must be limited to the scope indicated by it. The learned Judge observed:

'It is clear that it is only where a decree stands solely in the name of a person who dies that the provision would seem to apply. The instant case is a special one for which specific provision is made in the Code of Civil Procedure namely the case of a number of joint decree-holders. In the case of joint decree-holders the Civil Procedure Code confers a right on them apart from the general law to execute the decree in their own right and for the benefit of themselves as well as the heirs of the deceased decree-holder: such a specific provision which applies to the facts of the case must be applied and Section 214 of the Indian Succession Act has no application to a case of joint decree-holders where there are other decree-holders surviving the deceased decree-holder.'

12. It may be noted chat the surviving decree-holders white making an application for continuing the execution proceedings had categorically requested the Court to impose any condition on the surviving decree-holders which may be considered in the interest of the legal representatives of the deceased, decree-holder. Learned counsel appearing on behalf of the representatives of the deceased decree-holder has also made it clear in his application dated 7th of January, 1974 that the continuance of the execution proceedings pursued by the surviving decree-holders shall be in their interest. In this view of the matter, the impugned order passed by the executing Court cannot be interfered with.

13. The appeal, therefore, is dismissed summarily. No order as to costs.


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