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Sm. Tarak Dasi and ors. Vs. Batta Krishna Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 57 of 1961
Judge
Reported inAIR1964Cal42,67CWN601
ActsCode of Civil Procedure (CPC) , 1908 - Section 152 - Order 6, Rule 17; ;Succession Act, 1925 - Section 214(1)
AppellantSm. Tarak Dasi and ors.
RespondentBatta Krishna Roy and ors.
Appellant AdvocateH.N. Sen and ;C.N. Mookerjee, Advs.
Respondent AdvocateBankim Chandra Banerjee and ;Jagannath Gangopadhya, Advs.
Excerpt:
- .....succession act, 1925 the application must be for execution of a decree or order for payment 'of a debt. a decree for payment of a debt presupposes a debt existing before the passing of the decree. a judgment debt created by the decree itself is not a debtcoming within the purview of section 214(1)(b). in the instant case the decree sought to be executed is a decree for costs. prior to the passing of the decree there was no debt. it follows that the bar of section 214(1)(b) is not attracted to the case and the appellants as successors of the decree-holder giri mohan mallick are entitled to execute the decree without production of a succession certificate. 4. the result is that the two impugned directions mentioned above are set aside and subject to the observations contained herein the.....
Judgment:

Bachawat, J.

1. One Giri Mohan Mallick obtained a decree for costs on the 9th August, 1958, against respondent Raja Janaki Nath Roy, Narendra Nath Roy and Co. (Private) Ltd. The company went into liquidation on the 6th February 1958. Giri Mohan Mallick died intestate leaving behind him the appellants as his heirs. On the 9th August, 1958 the appellants started Title Execution Case No. 40 of 1958 for executing the aforesaid decree for costs against the respondent company, in the execution case the company was not described as being 'in liquidation'. By an order dated the 18th May, 1959, the liquidators of the company were brought on the record of the execution case as co-judgment debtors. On the 18th July, 1958 the liquidators filed Misc. Case No. 44 of 1959 objecting to the execution or the decree. The misc case was dismissed by the executing court on the 29th April, 1960. The liquidators preferred an appeal from this order. On the 21st February, 1961 the Additional District Judge allowed the appeal. The decree-holders have now preferred this appeal against the order dated the 21st February, 1961. By his judgment dated the 21st February, 1961, the Additional District Judge directed that the decree-holders shall not proceed against me liquidators as co-judgment-debtors and also directed that the execution proceeding shall continue against the Judgment-debtor Raja Janaki Nath Roy, Narendra Nath Roy and co. (Private) Ltd. by describing it as 'in liquidation' and 'being represented by its liquidators', None of these directions are challenged before us by any of the parties.

2. In this appeal only two of the directions given by the learned Additional District Judge are challenged by the appellants. The first direction which is impugned De-fore us is as follows :

'It will be for the learned Subordinate Judge to decide after hearing both the parties whether such amendment should be allowed or not and if so, on what terms, it will be again for the learned Subordinate Judge to decide if the law of limitation stands in the way of such an amendment. As the matter is premature and as there is no such application for amendment I express no opinion about it.'

We think that this direction is wrong and should be set aside and we set it aside accordingly. In our opinion on a proper application being tiled as mentioned above, the executing court shall allow the appropriate amendment showing that the company -is in liquidation and is being represented by its liquidators.

3. The second direction of the learned Additional Judge which is challenged before us is as follows ;

'I, therefore, hold that the decree-holders must obtain the necessary succession certificate before the decree is executed.'

We are satisfied that this direction is wrong and should be set aside and we set it aside accordingly. The decree sought to be executed is a decree for costs. In our opinion no succession certificate is necessary for the execution of a decree for costs. To attract the bar of Section 214(1)(b) of the Indian Succession Act, 1925 the application must be for execution of a decree or order for payment 'of a debt. A decree for payment of a debt presupposes a debt existing before the passing of the decree. A judgment debt created by the decree itself is not a debtcoming within the purview of Section 214(1)(b). In the Instant case the decree sought to be executed is a decree for costs. Prior to the passing of the decree there was no debt. It follows that the bar of Section 214(1)(b) is not attracted to the case and the appellants as successors of the decree-holder Giri Mohan Mallick are entitled to execute the decree without production of a succession certificate.

4. The result is that the two impugned directions mentioned above are set aside and subject to the observations contained herein the rest of the directions given by the learned Additional District Judge in the judgment appealed from is hereby affirmed. The appeal is disposed of accordingly. There will be no order as to the costs of the appeal in this Court.

Law, J.

5. I agree.


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