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Anehakana Sur and ors. Vs. Abani Bhusan Sur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberC.O. No. 3954 of 1981
Judge
Reported inAIR1980Cal378,86CWN523
ActsSuccession Act, 1925 - Section 214 and 214(1); ;Code of Civil Procedure (CPC) , 1908 - Section 47
AppellantAnehakana Sur and ors.
RespondentAbani Bhusan Sur and ors.
Appellant AdvocateRabindra Nath Mitra and ;Debasis Mitra, Advs.
Respondent AdvocateManmohan Mukherjee, Adv.
DispositionRevision application dismissed
Cases ReferredTarak Dasi v. Batta Krishna Roy
Excerpt:
- .....section 214 of the succession act. an action claiming an account is not an action for recovery of debt. debt implies a present obligation to pay a liquidated sum of money. a claim for an unliquidated sum can hardly be called a 'debt' (see sabju v. noordin, (1899) ilr 22 mad 139).6. mr. mitter appearing on behalf of the petitioners referred to the case of sahadev v. sk. sakhawat, (1908) 12 cal wn 145 in support of his contention that production of a succession certificate is necessary. the facts of this case were entirely different. there, after a preliminary decree had been made in a mortgage suit, the mortgagee died and his sons were substituted on the record and an order absolute was made in their favour. the proceeds of the sale of the mortgaged property being insufficient, they.....
Judgment:

B.C. Chakrabarti, J.

1. This re-visional application at the instance of the judgment-debtors raises a short question whether the Decree-holder opposite parties are entitled to proceed in execution of a decree obtained by their predecessor-in-interest without production of a Succession Certificate.

2. The judgment-debtors (hereinafter called the petitioners) raised an objection that the execution case was not maintainable. This objection under Section 47 of Civil P, C. was registered as Misc. Case No. 6 of 1980 of the 7th Court of the learned Subordinate Judge at Alipore and the learned Subordinate Judge has, by his order dated Aug. 31, 1981 overruled the contention. Hence the revisional application.

3. The application has been heard on notice to and upon contest by the opposite parties.

4. The controversy arose under the following circumstances and there is no dispute as to the facts leading to the controversy. The predecessor-in-interest of the opposite parties instituted a suit for recovery of damages being M. S. 10 of 1966. The principal allegation in the suit was that Dilip Kumar Sur, the predecessor-in-interest of the petitioners was appointed receiver in respect of a Jalkar in a Partition suit between the predecessors of the parties and that while acting as such Receiver the said Dilip Kumar Sur, Receiver misappropriated the profits arising out of the Jalkar which he was bound to refund. On such allegation Amiya Kumar Sur, predecessor-in-interest of the opposite parties instituted M.S. 10 of 1966 for realisation of a sum of R Section 36,498.45. The suit was decreed ex parte on 14-3-1967, in favour of Amiya Kumar Sur. The decree-holder Amiya Kumar Sur died on Nov. 30, 1975 whereupon the opposite parties filed a money execution for realisation of the decretal dues, against the present petitioner, Dilip Kumar Sur having died on 21-5-1968. The petitioners filed an objection under Section 47 of the Code contending inter alia, that in view of the provisions of Section 214 of the Succession Act the execution could not be proceeded with except on production of a succession certificate. The learned Subordinate Judge has rejected the objection by the order impugned.

5. There is no dispute that the claim in the Money suit was a claim for recovery of damages in the hands of a Receiver who was alleged to have misappropriated the profits while in possession as Receiver. Apparently it was not a claim for a liquidated sum. To all intends and purposes it was a suit for accounts. Question is whether such a claim is a 'debt' within the meaning of Section 214 of the Succession Act. An action claiming an account is not an action for recovery of debt. Debt implies a present obligation to pay a liquidated sum of money. A claim for an unliquidated sum can hardly be called a 'debt' (see Sabju v. Noordin, (1899) ILR 22 Mad 139).

6. Mr. Mitter appearing on behalf of the petitioners referred to the case of Sahadev v. Sk. Sakhawat, (1908) 12 Cal WN 145 in support of his contention that production of a succession certificate is necessary. The facts of this case were entirely different. There, after a preliminary decree had been made in a mortgage suit, the mortgagee died and his sons were substituted on the record and an order absolute was made in their favour. The proceeds of the sale of the mortgaged property being insufficient, they applied for a personal decree for the balance. It was held that until the applicants obtained a certificate under the Succession Certificate Act no such decree could be made in their favour. Such a view was taken because there could be no doubt that there was a 'debt' and the whole debt accrued due on the dale fixed for repayment in the bond, Even though the creditor was bound to seek a particular remedy in the first instance for the satisfaction of his claim but nevertheless the debt was all the while in existence and in full vigour. The right of realisation as against the debtors personally did not give a separate and independent cause of action, the debt being one debt only. This decision therefore cannot assist the petitioners in contending that claim for unliquidated damages is a debt.

7. The next case relied on, Bancharam v. Adya Nath, (1909) 13 Cal WN 966 is similarly clearly distinguishable on facts. It was held in this case that in the case of a debt existing in the life of a creditor which did not become payable until after his death, his heirs cannot obtain a decree without the production of a certificate. The distinguishing feature of the case is the existence of a debt in the life of the creditor.

8. In the case of Bisseswar v. Durgadas, (1905) ILR 32 Cal 418 it was held thai a suit for accounts is not a suit for the recovery of a debt within the meaning of Section 4 of the Succession Certificate Act and that it was an abuse of language to call such a liability as debt (see also Penta Reddi v. Anki Reddi, (1899) ILR 22 Mad 144 (Notes).

9. Hence it is apparent on the authorities cited that the claim in the money suit was not a claim for the recovery of a debt.

10. Mr. Mitter however, next contended that the petitioners being the heirs of the judgment-debtor under decree obtained in the Money Suit, the opposite parties, who are the heirs of the judgment creditor, since deceased, would be required to obtain a Succession Certificate before realising the debt. He conceded that the position might have been different had the execution case been initiated during the lifetime of Dilip Kumar Sur and Amiya Kumar Sur and the petitioners were substituted on the record of the execution ease. To us it seems that the fact that the decree has been put into execution after their death does not improve matters for the petitioners.

11. That this is so would be clear upon a reading of Section 214 of the Succession Act It provides that 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 deceased 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 proof of one of the five kinds of representative title enumerated in the section.

12. The use of the expressions 'such debtor and his debt' in Clause (b) referred to hereinbefore make it abundantly clear that the 'debt' referred to Clause (b) is referrable to a 'debt' as in Clause (a). In other words, unless the original claim in the suit which was the foundation for the decree was a 'debt'; Clause (b) would not be attracted. And we have already indicated that the original claim for damages on accounting could not come within the meaning of 'debt'. Consequently, in order to sustain a proceeding in execution by the heirs of the deceased decree-holder, a succession certificate would not be necessary.

13. Mr. Mitter finally referred to the case of Tarak Dasi v. Batta Krishna Roy reported in : AIR1964Cal42 . This decision instead of supporting the case of the petitioners goes very much against them. It supports the view we have taken by holding that in order to attract the bar of Section 214(1)(b) 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 outside the purview of Section 214(1)(b). Although the decree that was sought to be executed. there was one for costs, the principle why Section 214(1)(b) would not operate as a bar has been clearly explained and we concur with the view so taken.

14. Such being the position, there is nothing to interfere with the order impugned in this revisional application. The application is accordingly dismissed.

19. There will be no order for costs.

16. Let the order be communicated to the court below forthwith.

Anil K. Sen, J.

I agree.


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