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E.S. Raghavendra Rao and ors. Vs. Venkammal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberAppeal Against Order No. 68 of 1947
Judge
Reported inAIR1953Mad855; (1953)1MLJ801
ActsLimitation Act, 1908 - Schedule - Article 185 and 185(5)
AppellantE.S. Raghavendra Rao and ors.
RespondentVenkammal and ors.
Appellant AdvocateC.A. Vaidhyalingam, Adv.
Respondent AdvocateK.S. Desikan, Adv.
DispositionAppeal dismissed
Cases ReferredKailasa Pandaram v. Ramanuja Naidu
Excerpt:
.....certificate - articles 185 and 185 (5) of limitation act, 1908 - whether application by transferee-decree-holder for execution dismissed for want of production of succession certificate - transferee decree-holder's application should not be accompanied by succession certificate in case transfer by persons entitled to decree by operation of law - want of succession certificate may deprive assignee decree-holder of remedy which he seeks in execution petition - held, want of succession certificate cannot vitiate petition as nothing in law suggest that succession certificate shall be filed along with such application. - - on 11-12-1939 his advocate endorsed on the execution petition that the petitioner was unable to furnish security in o. mammi kutti',7 mad lt 247 (b), where it was held..........that arises for determination in this appeal is as to whether an application by a transferee-decree-holder for execution which was dismissed for want of production of a succession certificate is an application filed in accordance with law to the proper court for execution. 2. in o. s. no. 64 of 1936 on the file of the district munsif of erode a money decree was passed against the defendants on 25-7-1936. the decree-holder died sometime after the passing of the decree leaving behind him, as his heirs, three grandsons by his daughter who were minors. the father of these minors acting as their guardian assigned the decree to one rama rao. rama rao, the assignee decree-holder filed e. p. no. 1172 of 1939 on 18-7-1939 and asked for recognition of himself as the assignee-plaintiff under.....
Judgment:

Krishnaswami Nayudu, J.

1. The question that arises for determination in this appeal is as to whether an application by a transferee-decree-holder for execution which was dismissed for want of production of a succession certificate is an application filed in accordance with law to the proper Court for execution.

2. In O. S. No. 64 of 1936 on the file of the District Munsif of Erode a money decree was passed against the defendants on 25-7-1936. The decree-holder died sometime after the passing of the decree leaving behind him, as his heirs, three grandsons by his daughter who were minors. The father of these minors acting as their guardian assigned the decree to one Rama Rao. Rama Rao, the assignee decree-holder filed E. P. No. 1172 of 1939 on 18-7-1939 and asked for recognition of himself as the assignee-plaintiff under Order 21, Rule 16, Civil P. C.; for a declaration that as the original plaintiff was dead, his minor grandsons may be impleaded as his heirs under Order 21, Rule 3, Civil P. C. and that the immovable properties which belonged to the defendants may be attached under Order 21. Rule 54, Civil P. C. and that a sale proclamation may be issued under Order 21, Rule 21, C. P. C. The said execution petition was adjourned from time to time and the transferee decree-holder-petitioner was directed to produce the succession certificate. He was taking time to produce the same. He had already filed a petition, O. P. No. 62 of 1939 for that purpose but it eventually transpired that he was unable to furnish the security required for obtaining the succession certificate.

On 11-12-1939 his advocate endorsed on the execution petition that the petitioner was unable to furnish security in O. P. No. 62 of 1939, that the execution petition was filed to save limitation and that if it was rejected without being filed it may not save limitation and that the petitioner will renew his application for a succession certificate after getting the proper security and that this petition may be disposed of without prejudice to the petitioner renewing it after getting the certificate reserving his right to renew the same. On the 12-12-1939 by an order of the District Munsif the petition was dismissed for non-production of the succession certificate.

3. On 10-12-1942, the transferee decree-holder filed his next execution petition, E. P. No. 33 of 1943, for similar reliefs as those contained in the earlier execution petition and that petition was also returned for the production of the succession certificate. Subsequently, notice was ordered in the petition but the judgment-debtors applied for scaling down the decree and for stay of execution. Execution was stayed on 23-3-1943. E. P. No. 33 of 1943 was also dismissed by an order of court of that date.

4. The present execution petition, out of which this appeal arises was filed on 26-10-1943. In between, and by the date of that petition, the transferee decree-holder had obtained the succession certificate. Objection was raised in this execution petition that it was barred by limitation as the order dated 12-12-1939 in E. P. No. 1172 of 1939 was not a final order in an application presented in accordance with law to the proper court for execution under Article 182 (5) of the Limitation Act. E. P. No. 1172 of 1933 was presented under Order 21, Rule 16 of the C. P. C. by the transferee-decree-holder who relied on the assignment deed in his favour. There is no dispute that the assignment deed was filed in Court along with E. P. No. 1173 of 1939. This was also verified and found to be correct by the learned District Judge while hearing the appeal.

The only ground therefore for not ordering execution is that the succession certificate was not issued to the decree-holder by the date of the ordpr of 12-12-1939. It is not suggested that the E. P. No. 1172 of 1939 did not contain the particulars that are required to be shown in an execution petition under Rules 11 to 14 of Order 21 of the Civil P. C. It was an application by a person who was claiming to be a transferee decree-holder under Order 21, Rule 16, Civil P. C. He relied for the transfer upon an assignment deed which he had also produced with the petition. Therefore, 'prima facie' there is no reason to hold that E. P. No. 1172 of 1939 was not a petition presented in accordance with law.

5. The procedure that governs the presentation of applications in the case of a transferee decree-holder is that which is contained in Order 21, Rules 11 to 14 and 16 of the Code. There is compliance of the said provisions of the Code and it cannot be said that it is not an application presented in accordance with law. Support for this proposition is found in some of the decisions cited at the Bar. In -- 'Sreepada Brahmayya Pantulu v. Parasuramayya', 12 Mad LJ 348 (A), a Bench of this Court held that a person who becomes entitled under a decree to realise the amount due under another decree, is a transferee under Section 232, C. P. C. and is the only person who could have applied for execution of the latter decree. Such application is one in accordance with law though the transferee is subsequently held to have no title and the application has the legal effect of saving the bar and enures in favour of all persons entitled to execute the decree.

This decision was cited with approval in --'Uduman Haji v. Mammi Kutti', 7 Mad LT 247 (B), where it was held that failure to prove the validity of the assignment does not show that the application for execution was not in accordance with law. In -- 'Rajithagiripathi v. Bhavani Sankaram', AIR 1924 Mad 673 (C) it was held that the application by the transferee decree-holders for recognition of their transfer and for execution was a step-in-aid of execution Of the decree, even though the right of the transferees had been negatived in subsequent proceedings. This decision again quotes with approval the view taken in -- 12 Mad LJ 348 (A).

6. But it is contended by Mr. Vaidyalingam on behalf of the appellants that the decision in -- 12 Mad LJ 348 (A) was based on the old Code. But it must be noted that Section 232 of the old Code is in no way substantially different from the present Order 21, Rule 16, Civil P. C. and the fact that it is a decision under the old Code is not of much consequence. Section 232 is practically in terms of Order 21, Rule 16, C. P. C. under which the application that is now in question has been filed. The Patna High Court had also taken a similar view as could be seen from the decision reported in --'Mt. Bibi Aisha v. Mahabir Prasad', : AIR1927Pat324 (D). It was held therein that an execution application is in accordance with law within Article 182 (5) if the particulars required by Rules 11 to 14 of Order 21 are mentioned in the application and that where an application contains these particulars, the fact that it was presented without a succession certificate makes no difference, as an application without a succession certificate is perfectly in order; only no relief can be granted until the succession certificate is produced.

Reliance was placed on behalf of the appellants on -- 'Kailasa Pandaram v. Ramanuja Naidu', AIR 1918 Mad 1204 (E), where it was held that the decree-holder having failed to obtain recognition of his right in the prior application, his prior application was by a person not entitled to make it and cannot save the present application from the bar of limitation. It must be noted that in that case the decree was in favour of three minor brothers represented by a guardian. The guardian applied for and obtained an order for sale. One of the minors then attained majority and acting for himself and as guardian of his minor brothers, he assigned the decree to the respondent. The respondent put in an execution petition for executing the whole decree which was however dismissed on the ground that the assignment was invalid to the extent of the minors' shares as leave of the Court was not obtained and execution was wholly disallowed as the petition did not purport to be one by a joint decree-holder. It was therefore held that the Court could not treat the order dismissing it as one recognising the validity of the assignment, or in view of that order, which became final, assume that his assignment was valid. That was a case where the assignment was held to be invalid and in view of that finding it cannot be said that the assignee was the proper person to maintain the application and obviously the petition was not one in accordance with law.

7. I am of the opinion that E. P. No. 1172 of 1939 was presented by the proper person in accordance with law and the order of 12-12-1939 was the final order in such an application which could save limitation. Once it is shown that the petition complied with the requirements of Order 21, Rules 11 to 14 and 16 of the Code, the application for execution in this case being one by a transferee decree-holder, the effect or otherwise of a succession certificate not having been produced along with the execution petition, would not be of consequence, since it is nowhere said in the rules referred to, much less in Rule 16 of Order 21, that a transferee decree-holder's application should also be accompanied by the succession certificate when the transfer is by persons who have become entitled to the decree by operation of law. The want of a succession certificate may deprive the assignee decree-holder of the remedy or the relief which he seeks in the execution petition. But it certainly cannot vitiate the petition itself as there is nothing which says that a succession certificate should be filed along with such an application,

8. In the result I find that the order of the lower appellate Court is correct. The appeal is dismissed with costs. No leave.


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