V.P. Gupta, J.
1. Feeling aggrieved from the order dated July 12, 1982, passed by the Senior Sub-Judge Shimla, the petitioners have filed the present revision petition.
2. Briefly, the facts are that a money decree was passed by Munsif Court Ghaziabad, on Dec. 21, 1967 in favour of Bidhi Chand Shastri (now deceased) against M/s. Ralla Ram Tulsi Ram and others.
3. The present petitioners claim themselves to be the legal representatives of Bidhi Chand, who died on Jan, 5, 1982. The respondents are the judgment-debtors. Bidhi Chand moved the court of Munsif Ghaziabad for transferring the decree to the Court at Shimla (Himachal Pradesh) for execution purposes and Munsif Ghaziabad sent the decree for execution to the court of Shimia, along with a copy of the decree and a certificate under Order 21 Rule 6 of the Civil P.C. (hereinafter the Code). Bidhi Chand also moved an application under Order 21, Rule 30 of the Code in the Court of Senior Sub-Judge Shimla on Nov. 20, 1979 and prayed that the amount of the decree be paid to him after carrying out execution proceedings. The Senior Sub-Judge, Shimla (hereinafter the transferee court) proceeded with the execution and issued processes etc. During the pendency of the execution proceedings in the transferee court, Bidhi Chand decree-holder died and the petitioners moved an application on 3-4-1982 with a prayer that they may be allowed to continue with the execution proceedings as legal representatives. The petitioners claim themselves to be widow, sons and daughters of Bidhi Chand (decree-holder). This application was contested by the respondents who claimed that the petitioners had no right to continue the execution proceedings.
4. The respondents also filed an application under Section 47 read with Section 151 of the Code on April 17, 1982, alleging that the execution proceedings could not be continued by the petitioners without obtaining a succession certificate under Section 214 of the Succession Act. Reply was filed on behalf of the petitioners, who claimed that there was no need to obtain a succession certificate and they had a right to continue the execution proceedings.
5. The learned Senior Sub-Judge Simla, by his judgment dated July 12, 1982, held that the petitioners could not continue the execution proceedings without obtaining a succession certificate and further held that they could not be brought on record as legal representatives by a transferee court.
6. I have heard Shri K. D. Sood, the learned counsel for the petitioners and Shri S. R. Sharma, the learned counsel for the respondents.
7. Shri Sood contends that upon the application of Bidhi Chand, the court of Munsif, Ghaziabad had transferred the decree to the Shimla court for execution with requisite documents. Bidhi Chand also filed an application under Order 21 Rule 10 of the Code in the transferee court and notices etc. of the execution were sent by the transferee court. Now, after the death of Bidhi Chand, the present petitioners are entitled to continue the execution proceedings because no fresh application has been filed by them. He contends that Section 214 of the Succession Act is not applicable and the transferee court has powers to implead the petitioners as legal representatives. In support of his contentions he places reliance on AIR 1972 All 321 (Shrinath Khandelwal v. Bishwanath Prasad) and AIR 1971 Mad 419 (Ramanatha Reddy v. K. V. Kuppuswami Mudaliar).
8. Shri Sharma, the learned counsel for the respondents, contends that an application seeking permission to continue the execution proceedings can only be filed in the court of Munsif Ghaziabad and the transferee court has no jurisdiction to entertain or decide such application. He also contends that the petitioners have no right to continue the proceedings without obtaining a succession certificate. In support of his contentions he has referred to AIR 1979 Ker 231 (Sankaran Nair Ramakrishanan Nair v. Madhavi Amma Easwari Amma), AIR 1968 Raj 273 (Ganeshmal v. Smt. Anand Kanwar) and AIR 1938 Nag 528 (Tehraj Rajmal Marwadi v. Rampyari).
9. I have considered the contentions of the learned counsel for the parties.
10. The admitted/proved facts are that a decree was passed in favour of Bidhi Chand (Deceased) decree-holder on Dec. 21, 1967 by the Court of Munsif Ghaziabad. Bidhij Chand got this decree transferred to the court of Senior Sub-Judge, Shimla for execution. He filed an application under Order 21 Rule 10, of the Code in the transferee court in 1979 and the execution proceedings continued till his death, i.e. Jan. 5,1982. In the transferee court during the execution proceedings the counsel for the respondents offered to pay a sum of Rs. 2000/- on Dec. 5, 1981, towards full and final satisfaction of decree to Bidhi Chand (decree-holder) but the learned counsel, appearing on behalf of Bidhi Chand (decree-holder) wanted adjournment to get instructions and the case was adjourned. In the mean time, Bidhi Chand died and the petitioners filed an application to continue with the execution proceedings as legal representatives of Bidhi Chand.
11. Order 21 Rule 5 of the Code provides that where a decree is to be sent for execution to another court, the Court which passed such decree shall send the decree directly to such other court whether or not such other court is situated in the same State, but the court to which the decree is sent for execution shall, if it has no jurisdiction to execute the decree, send it to the court having such jurisdiction.
12. Under Order 21 Rule 6 of the Code, the court sending a decree for execution, shall send:--
'(a) a copy of the decree;
(b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the court by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied and
(c) a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect'.
13. Order 21 Rule 7 of the Code provides that the court receiving copies of decree etc. under Order 21 Rule 6 of the Code has to file the same without proof unless it, for any special reasons to be recorded under the hand of the Judge, requires such proof. Order 21 Rule 10 of the Code provides that where the decree-holder of a decree desires to execute it, he shall apply to the court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another court then to such court or to the proper officer thereof.
14. Thus under Order 21 Rule 10 of the Code, a decree holder is to make an application to the transferee court in case the decree is transferred for execution purposes and this application should comply with the provisions of Order 21 Rule 11 of the Code.
15. Section 49 of the Code deals with transferee and provides that every transferee of a decree shall hold the same subject to equities (if any), which the judgment-debtor might have enforced against the original decree-holder.
16. Section 50 of the Code deals with legal representatives and provides that : --
'50. Legal representatives.-- (1) where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.
(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hand and has not been duly disposed of, and, for the purpose of ascertaining such liability, the court executing the decree may of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit'.
17. There is no mention in Section 50 of the Code regarding legal representative of a decree-holder and therefore, the legal representative of a decree-holder can only be treated to be a transferee of a decree.
18. Order 21 Rule 16 of the Code reads as follows : --
'16. Application for execution by transferee of decree.-- Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by, assignment in writing or by operation of law, the transferee may apply for execution of the decree to the court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder :
Provided that ......
Provided also that.....
Explanation -- Nothing in this rule shall affect the provisions of Section 146, and a transferee of rights in the property, which is the subject matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule.'
19. This rule also makes it clear that legal representative/heir of the deceased decree-holder will be treated as a transferee of the decree by operation of law.
20. The position of the petitioners thus isthat of a transferee of a decree.
Section 146 of the Code reads as follows : --
'146. Proceedings by or against representatives :-- Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.'
21. Similarly, Section 42 of the Code reads as follows : --
'42. Power of Court in executing transferred decree.-- (1) The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.
(2) without prejudice to the generality of the provisions of Sub-section (1), the powers of the Court under that sub-section shall include the following powers of the Court which passed the decree, namely -
(a) power to send the decree for execution to another court under Section 39.
(b) power to execute the decree against the legal representative of the deceased judgment-debtor under Section 50;
(c) power to order attachment of a decree.
(3) A court passing an order in exercise of the powers specified in Sub-section (2) shall send a copy thereof to the Court which passed the decree.
(4) Nothing in this section shall be deemed to confer on the Court to which a decree is sent for execution any of the following powers, namely : --
(a) Power to order execution at the instance of the transferee of the decree;
(b) in the case of a decree passed against a firm, power to grant leave to execute such decree against any person, other than such a person as is referred to in Clause (b), or Clause (c), of Sub-rule (1) of Rule 50 of Order XXI.'
22. An application for execution was already filed by Bidhi Chand (Deceased) in the transferee court and the petitioners only want to continue with the execution proceedings. Order 21 Rule 16 of the Code can only apply to a case where an application for execution is made by a transferee in the court which passed the decree but it will not apply to a case where the transferee only wants to continue with the execution application. In the facts and circumstances of the present case the provisions of Order 21 Rule 16 of the Code are, therefore, not attracted.
23. Under Section 42(1) of the Code, a transferee court has all the powers in executing a decree as if the decree had been passed by itself and under Section 42(2) of the Code the transferee court has also certain powers to execute the decree. Section 42(4)(a) of the Code, however, is an exception and provides that a transferee court has no power to order execution at the instance of the transferee of the decree.
24. The cumulative effect of the various provisions is that if the transferee by operation of law wants to execute a decree in his capacity as a transferee by making an application for execution then under Section 42(4)(a) of the Code he cannot file such an application in the transferee court, although he has a right to execute the decree under Order 21 Rule 16 and file an application for execution in the, executing court which passed the decree. However, if the application for execution had already been filed by the original decree holder, then the legal representatives of such a person can continue with the execution proceedings under Section 146 of the Code. In the present case the decree-holder Bidhi Chand had a right to continue and proceed with the execution proceedings, therefore, the petitioners will have a right to continue with such proceedings as they are claiming under him. The transferee court having all the powers of an executing court can allow continuation of the execution proceedings initiated by the original decree-holder having a right to file the execution application. The tansferee court can also implead a legal representative of the deceased for the purposes of the continuance of the execution proceedings.
25. The other contention of the learned counsel for the respondents that a succession certificate under Section 214(b) is necessary for continuation of the execution proceedings is to be considered in view of the provisions of Section 214 of the Succession Act, which reads as follows : --
'Proof of representative title a condition precedent to recovery through the courts of debts from debtors of deceased persons. --(1) No Court shall
(a) pass a decree against a debtor of a deceased person for payment of his debt to 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 entitled to execute against such a debtor a decree or order for payment of his debt except on the production by the person so claiming, of -
(iii) a succession certificate granted under Part X and having the debt specified therein, or
(2) The word 'debt' in Sub-section (1) includes payable in respect of land used for agricultural purposes'.
26. The High Courts of Allahabad, Calcutta, Madras, Patna, Andhra Pradesh and Peshawar have taken a view that no succession certificate is required to be produced by the legal representatives of a deceased decree-holder if an application for execution had already been filed by the decree-holder himself and the decree-holder dies during the pendency of the execution proceedings. The legal representatives of deceased decree-holder can continue with the execution proceedings without producing a succession certificate and Section 214(1)(b) of the Succession Act does not apply. It is further held that in case the original application is to be filed by the legal representatives of a deceased decree-holder then in that case it is necessary for the legal representatives to file a succession certificate before filing the original execution application and the execution cannot proceed without filing of such a succession certificate.
27. The High Courts of Kerala, Rajasthan, Kutch, Nagpur, Travancore and Cochin and Mysore have taken a contrary view and have held that production of succession certificate is necessary if the legal representatives of a deceased decree-holder wish to proceed with the execution proceedings even if they are substituted as legal representatives during the execution proceedings already filed by a deceased decree-holder.
28. In AIR 1972 All 321 (supra), one Narain Dass obtained a decree against Vishwanath Prasad. The decree-holder filed an execution application on 8-8-1961, but during the pendency of the execution proceedings he died on 18-11-1961. The appellant Shrinath Khandelwal applied for being substituted as a legal representative and legatee of the deceased on the basis of a will and was substituted in place of the decree-holder because there was no objection raised on behalf of the judgment-debtor. Subsequently, the judgment-debtor respondent filed an objection under Section 47 of the Code alleging that the appellant was not the legal representative and could not proceed with the execution without a succession the Succession Act, it was observed as follows :--
'The other argument in favour of the necessity of producing a succession certificate proceeds from a literal interpretation of the language of Section 214(1)(b) of the Succession Act. It was contended by the learned counsel for the respondent that the application for substitution by the legal representative of the deceased decree-holder is in effect an application for proceeding with execution in as much as the original application for execution filed by the deceased decree-holder becomes the application of the person claiming to be entitled to be substituted. This argument can be sustained only if one can read into Clause (b) of Section 214(1) a complete bar to proceed with any application which is made by a person for continuing the proceedings. This inference is possible only when the word 'application' is given a wide meaning and the words 'claiming' to be so entitled 'are regarded as the key words of the section and are juxtaposed with 'application'. In my opinion the crucial words in Clause (b) are 'application' and 'to execute' and they should be read together to comprehend the real inhibition enacted by this provision. The central point to be investigated is as to whether the application by virtue of which the person claims to prosecute the execution proceedings becomes an execution application or is merely a substitution application and in the nature of an incidental application. The emphasis of the legislature seems to be on the words 'to execute'. When an application for substitution is made by the legal representatives of the deceased decree-holder, it is not an execution application as such. It is merely an ancillary application calculated to enable the appellant to continue the execution already set in motion. A distinction has, therefore, to be drawn between cases in which the decree-holder dies prior to applying for execution and cases where the execution is initiated by him but he dies during the pendency of the application and then his legal representative steps in and in substance asks for leave to continue those proceedings. In the former case a succession certificate may be required to be filed (though the point does not arise here and I need not decide it) but in the latter the language of the section does not warrant certificate. In other words, the 'words 'application of a person' occurring in Clause (b) of Section 214(1) must be construed to mean a substantive application and not an ancillary application of the type referred to above.'
29. Reliance was placed upon AIR 1959 All 179 (SB) Rama Sheo Amber v. Allahabad Bank, (1899) ILR 26 Cal 839 Mohamed Ussuf v. Abdur Rahim, AIR 1957 Pat 435 Raghbir Narain Singh v. Raj Rajeshwari Prasad, AIR 1965 Pat 296 Lal Kumari v. Fulmati Kuer and AIR 1963 Andh Pra 69 Akula Mabukhan v. Rajamma.
30. It was observed that the words 'application to execute' occurring therein refer to a substantive application by which execution proceedings were initiated and not to any other application which may be regarded as merely an ancillary application. Therefore, the bar enacted by the aforesaid provision does not apply to the application of a person who seeks to continue after the death of the original decree-holder the execution proceedings which were initiated by the decree-holder. Sub-section (1)(b) of Section 214 only bars the institution of execution proceedings by a person claiming on succession and does not bar the continuance of the proceedings if the execution proceedings have already been commenced by the deceased. In para 8 it is observed :
'The execution proceedings can go on despite the death of the decree-holder provided that there is some one to take the necessary steps and enable the Court to continue the execution. A fresh application to execute the decree on behalf of the successor is not at all necessary. The heirs are not to take steps for substitution under Order 22, Rule 2 CPC. but they merely apply to carry on proceedings and from this the conclusion becomes irresistible that an application made by the person claiming to be the heir and legal representative of the deceased decree-holder is not 'an application to execute' but an application to carry on the proceedings already pending'.
31. In (1899) ILR 26 Cal 839 (supra) an application for execution was filed by the decree-holder, but during the pendency of the execution proceedings the decree-holder place. An objection was raised that the decree could not be executed in the absence of a succession certificate. A division Bench of the Calcutta High Court held that the court was not proceeding upon the application of a person claiming to be entitled to the effects of a deceased person but was proceeding originally on the application of the creditor himself and it was only during the pendency of the execution proceedings that the original decree-holder died and his legal representatives were brought on record. In such a case the-court could proceed with the execution in the absence of a succession certificate.
32. AIR 1959 All 179 (SB) (supra) does not deal with the question of the production of a succession certificate but is only relevant for the purpose that an ancillary or incidental application made in connection with the pending execution case started with the execution application cannot be said to be barred by limitation under the provisions of Section 48 of the Code. No rule of limitation is applicable to such ancillary applications which are to be treated as applications in an already pending execution case.
33. In AIR 1971 Mad 419 (supra), a learned Single Judge observed that Section 214 bars the court from proceeding with the execution of 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 (initiation) of execution proceedings by a person claiming on succession, and does not bar the continuance of the proceedings already initiated by the deceased. In view of Order 22, Rule 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 of the Code. Once the legal representative substitutes 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 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 filed 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. The learned Judge preferred the view taken in (1899) ILR 26 Cal 839 (supra), AIR 1957 Pat 435 (supra), AIR 1965 Pat 296 (supra) and AIR 1963 Andh Pra 69 (supra).
34. In AIR 1973 Cal 352 (Benode Chatterjee v. Purnendu Nath Tagore) the view enunciated in AIR 1972 All 321 (supra) was followed and it was observed that the decision in AIR 1938 Nag 528 (supra) was not directly on the point because the application was not an application by the heirs of the deceased decree-holder for substitution and the substitution of the heirs of the deceased was not necessary in execution proceedings.
35. In AIR 1957 Pat 435 (supra) it was held that Section 214(1)(b) only bars the institution of execution proceedings by a person claiming on succession and does not bar the continuance of the proceedings which had been instituted by the original decree-holder. Execution proceedings having once been instituted by the original decree-holder, his heirs can continue them without the production of the succession certificate. Reliance was placed on (1899) ILR 26 Cal. 839.
36. AIR 1965 Pat 296 (supra) simply follows AIR 1957 Pat 435 (supra).
37. In AIR 1963 Andh Pra 69 (supra) Division Bench held that Section 214(1)(b) does not apply to a person who seeks to come on record as the legal representative of a decree-holder for the purpose of continuing the application and the legal representatives need not produce succession certificate to continue the execution. The learned Judges placed reliance upon (1899) ILR 26 Cal 839 (supra) and AIR 1957 Pat 435 (supra) and declined to follow the opinion expressed in AIR 1938 Nag 528 (supra). It was also observed that there was no independent reasoning in AIR 1956 Trav Co 183, Thoma Chacko v. Koshi
38. AIR 1936 Peshwar 17 (Balmukand v. Govind Ram) followed the view taken in (1899) ILR 26 Cal 839 (supra). It was held that the execution proceedings instituted by the original decree-holder can be continued by his heirs without the production of a succession certificate irrespective of whether they are heirs by inheritance or by survivorship.
39. The contrary view is taken in the following judgments :
In AIR 1938 Nag 528 (supra) it was held that upon an application of a person claiming to be so entitled means a person entitled to any part of the deceased's estate and the Court cannot on that application proceed with the execution unless a succession certificate is produced.
40. In AIR 1955 Kutch 6 (Shah Ramji Ladha v. Hothi Harisangji Versalji it is held that an application for substitution is in effect an application for proceeding with execution on substitution and on substitution, the original application 'for execution filed by the deceased decree-holder becomes the application of the person claiming to be so entitled. The object of making provision for production of a certificate of succession in Section 214 was to protect interest of debtors making payment to persons claiming to be entitled to the effects of decree-holders, since deceased. It was therefore provided in Sub-Clause (a) that a decree should not be passed in favour of a legal representative till he produced a representation certificate. It was further provided that a legal representative of a deceased decree-holder should not be allowed to execute the decree till he produced a certificate of succession.
41. Similarly, in AIR 1956 Trav Co 183 (supra), reasonings of AIR 1938 Nag 528 were followed.
42. In AIR 1968 Raj 273 (supra), a Division Bench of the Rajasthan High Court has held that in case where an execution application is pending and his legal representative presents an application to be substituted in his place, it is, in substance, his application to the court to execute the decree or order. The word 'application' in Clause (b), therefore, was not meant to convey the sense of only a freshapplication for execution of the decree, but it also includes an application for continuing the pending application for execution of the decree presented 'by the deceased decree-holder. The view taken in AIR 1938 Nag 528 (supra) was followed.
43. In AIR 1979 Ker 231 (supra) the learned Judge preferred to follow the Nagpur, Travancore-Cochin and Rajasthan views and held that the purpose of Section 214 of the Succession Act was to protect the interests of the debtor to ensure that payment was made to the person who in law is entitled to the effects of the deceased creditor. It was held that the word 'application' should be interpreted to mean not only a fresh application for execution but also an application for continuation of execution petition already filed.
44. No decision of this Court or the Supreme Court was brought to my notice. After consideration of the whole matter. I prefer to follow the view taken by the High Courts of Allahabad, Calcutta, Madras, Patna, Andhra Pradesh and Peshawar.
45. In the present case Bidhi Chand (deceased) had filed an application under Order 21 Rule 10 of the Code in the transferee court and the present petitioners being the widow, sons and daughters, are his legal representatives/heirs.
46. Order 22 Rule 12 of the Code provides that the provisions of Rules 3, 4 and 8 of Order 22 are not applicable to proceedings in execution of a decree. The legal representatives are, therefore, to be substituted to carry on the execution proceedings only. They are not required to file a separate execution application and under Section 146 of the Code they are entitled to continue with the execution proceedings started by the decree-holder.
47. It is correct that the main purpose requiring the production of a succession certificate is to protect the interests of the debtors, but in case the deceased creditor had himself initiated the execution proceedings, the persons claiming substitution as legal representatives have only to prove that they are the legal representatives of the application on their behalf and they join the proceedings at an intermediary stage.
48. A plain reading of Section 214(1)(b) of the Act makes it clear that the production of a succession certificate is only necessary in case where an application to execute a decree is filed by a legal representative, that is, there should be a substantive application to execute the decree. An application for being substituted in place of the decree-holder as legal representatives can only be treated to be an ancillary application to continue the execution proceedings and not a substantive application to execute the decree. In this case the petitioners only pray for being substituted in place of the decree-holder as their legal representatives and hence they are not required to produce any succession certificate.
49. The reasoning of AIR 1972 All 321 (supra) and AIR 1971 Mad 419 (supra) are fully applicable in the present case.
50. As a result of the above discussion, the order of the learned Senior Sub-Judge dated July 12, 1982 is set aside and the present revision petition is accepted. The objection petition under Section 47 read with Section 151 of the Code filed on behalf of respondents-judgment-debtor's is dismissed. The execution proceedings shall now proceed in the transferee court in accordance with law and the transferee court may now decide the application of the petitioners filed under Order 21 Rule 16 read with Section 146 of the Code in the light of these observations. The parties are left to bear their own costs.