1. The only point that arises in this appeal is as to whether the legal representatives of the deceased decree-holder can continue the Execution Petition filed by him without a succession certificate. One Natesa Mudaliar obtained a decree against the appellant herein in O.S. 128 of 1964 and he filed E. P. 118 of 1965 in Sub-Court, Vellore. During the pendency of the said E. P., the said Natesa Mudaliar died and his widow, sons and daughters filed E. A. 364 of 1969 for impleading themselves as his legal representatives and to continue the E. P. further. The appellant-judgment-debtor raised the objection that the legal representatives cannot be allowed to continue the E. P. without production of a succession certificate. This objection was overruled by the executing Court, and the respondents herein were brought on record as the legal representatives of the deceased decree-holder and the execution was allowed to proceed. The matter was taken in appeal to the District Court, North Arcot and the appellate Judge also held that no succession certificate was necessary to continue the E. P. filed by the deceased decree-holder. The question is whether the view taken by the court below is correct.
2. The learned counsel for the appellants contends that a succession certificate is necessary under S. 214(1)(b) of the Indian Succession Act and that the view of the courts below holding that no succession certificate is required for continuance of the E. P. is erroneous. According to the learned counsel Order 22, Rule 12, Civil P. C. will not apply to execution proceedings and it is only Rule 16 of Order 21 and Section 146 that can be invoked in relation to execution proceedings, and having regard to the wording of Rule 16 of Order 21 when a legal representative seeks to continue the E. P., he in effect seeks to substitute himself for the deceased decree-holder which amounts to the filing of fresh execution petition by the legal representative. By such a contention the learned counsel for the appellant seeks to get over a series of decisions holding the view that if the legal representatives seek to continue the E. P. filed by the deceased decree-holder no succession certificate is necessary under Section 214(1)(b) of the Indian Succession Act.
3. In Mohamed Yusuf v. Abdur Rahim Bepari, I.L.R. (1899) Cal 839 while construing the scope of similar provision in Section 4 of the Succession Certificate Act of 1889, it was held that section is not a bar to execution proceedings instituted 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 that his legal representatives who have been substituted in his place need not produce any succession certificate. The said Section 4 provided 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 the debtor of such deceased person a decree or order for the payment of his debt. Construing the words 'proceed upon the application of a person claiming to be entitled to the effects of the deceased person' the court expressed the view that when the legal representatives seek to continue the application filed by the decree-holder, the court is not proceeding upon the application of the legal representatives but was proceeding upon the application of the original creditor himself. Balmukund v. Gobindram, AIR 1936 Pesh 17 and Raghubir Narain Singh v. Raj Rajeswari Prasad Singh : AIR1957Pat435 also took the same view (In Lal Kumari v. Fulmati Kuer : AIR1965Pat296 ), while rejecting a contention raised by the judgment debtor that the heirs of the original decreeholder cannot be permitted to execute the decree without production of a succession certificate under the provisions of Section 214(1)(b) of the Indian Succession Act, the Court held that the execution petition having been commenced by the original decreeholder himself, Section 214(1)(b) had no application at all to that case, following the decision of the same Court in : AIR1957Pat435 . In Akula Mabukhan v. Rajamma : AIR1963AP69 , it was held that it is only an application for execution filed by a person claiming to be entitled to execute the decree that comes within the prohibition enacted in Section 214(1)(b), that it did not apply to a person who seeks to come on record as legal representative of a decreeholder for the purpose of continuing that application, that the continuance of an execution petition filed by the decreeholder himself by his legal representatives after his death was not hit at by Section 214(1)(b), and that as such a legal representative need not produce a succession certificate to continue the execution. Chandra Reddy C. J., speaking for the Bench, states:--
'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 S. 214(1)(b). Could it be predicated that a person, who seeks to come on record as the legal representative of a decreeholder 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'.
Another Bench of the Andhra Pradesh High Court in Apparao v. Venkanna, 1969 2 AWR 479 had also expressed that the language employed in Section 214(1)(b) is plain and clear enough to indicate that no Court shall proceed to execute a decree upon an application by a person claiming to be entitled thereto on succession and that a succession certificate was not necessary where the applicant simply seeks to continue a pending proceeding.
4. As against these decisions which clearly lay down the principle that when the execution petition has been initiated by the deceased decreeholder himself and the persons succeeding him seek to continue the execution proceedings no succession certificate is required under Section 214(1)(b) of the Indian Succession Act, the learned counsel for the appellant seeks to rely on the following decisions which take a contrary view.
5. In Tejraj Rajmal v. Rampyari AIR 1938 Nag 528 it has been held that where the legal representatives who get themselves substituted in the place of the decreeholder and seek to proceed with the execution petition filed by the deceased decreeholder, the production of a succession certificate under Section 214(1)(b) was essential. In that case the Court distinguished I.L.R. (1899) Cal 839, and preferred to follow Fateh Chand v. Muhammad Bakhsh, I.L.R. 1894 All 259. The reasoning adopted in that case was that abatement does not apply to execution proceedings, that steps have to be taken by the legal representatives for substitution, that such an application for leave to carry on the pending execution petition will fall within the words 'upon an application of a person claiming to be so entitled' occurring in Section 214(1)(b) and that the court cannot proceed on that application unless a succession certificate is produced. The said view has been followed in Chacko v. Varghese, AIR 1956 TC 183. In that case after the filing of an execution petition the decree-holder died and his heirs put in a petition for being impleaded and for continuing the execution. The question was whether a succession certificate was essential in view of Section 214. The Court, after considering the rival views in I.L.R. (1899) Cal 839 and AIR 1938 Nag 528 found it impossible to follow I.L.R. (1899) Cal 839 and adopting the reasoning in AIR 1938 Nag 528, they held that a succession certificate is essential for continuing the existing E. P. The learned Judges in that case dissented from the view expressed in I.L.R. (1899) Cal 839 and the later decisions following it. Ganeshmal v. Anand Kanwar has also taken a similar view. It was held in that case that the main purpose of Section 214 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 decreeholder; that if that basic purpose 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 the place of the decree-holder obtains a succession certificate and produces in court, and that even in a case where an execution application is pending and his legal representatives present an application to be substituted in his place, it is in substance, an application to execute the decree or order which will attract the provisions of Section 214.
6. So far there appears to be no decided case on this point by this court. On a due consideration of the matter I consider that the view expressed in : AIR1957Pat435 and : AIR1963AP69 , has to be preferred rather than the view expressed in . The reason set out in AIR 1938 Nag 528 for taking a different view from I.L.R. (1899) Cal 839 is this:--
7. An application filed by the legal representative to bring himself on record should be treated as an application for substitution or for fresh execution and if so treated it will attract the provisions of Section 214. 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 O. 22, R. 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 P. C. Once the legal representative subtitutes 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.
8. The result is the orders of the courts below have to be upheld and the appeal dismissed but without costs.
9. Appeal dismissed.