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Petitioner: JOGENDRA KISHORE SARKAR VS Respondent: GAJENDRA KUMAR NANDI
P L D 1960 Dacca 617
P L D 1960 Dacca 617
Before Chowdhury, J
JOGENDRA KISHORE SARKAR‑Appellant
versus
GAJENDRA KUMAR NANDI AND OTHERS‑Respondents
Second Miscellaneous Appeal No. 35 of 1956, decided on 25th March 1958.
Succession Act (XXXIX of 1925), S. 214 (1)(b)‑Death of decree‑holder firing pendency of execution case‑Heirs seeking to proceed with execution need not take out succession certificate.
An application filed by the heirs of a deceased decree‑holder in a pending execution case cannot be said to be an application for the execution of the decree, but it is an application to allow the heirs to proceed with the pending execution case, that is to say, the execution case which had already been started by the decree‑holder. Therefore, clause (b) of subsection (1) of section 214 of the Succession Act, 1925 applies to a case where the heirs of the original decree‑holder after his death file an application for execution of the decree, it has got no application where the application for execution of the decree had already been started by the deceased decree‑holder who died during the pendency of the execution case, and his heirs and legal representatives ask leave of the Court to continue with the execution case. Taking out of succession certificate in a pending execution proceeding is not necessary.
Mohammad Yusuf v. Abdur Rahim Bepari and others I L R 26 Cal. 839 ref.
Baid Nath Das v. Shamanand Das I L R 22 Cal. 144 and Nepasi Bewa v: Nasiruddin 27 C L J 400 ref.
Tejraj Rajmal Marwadi v. Rampyari A I R 1938 Nag. 528 not approved.
P. N. Bhattacharyya for Appellant.
D. C. Bhattacharyya for Respondent.
JUDGMENT
This appeal is by the judgment‑debtor. It arises out of an application under section 47 of the Code of Civil Procedure filed by the judgment‑debtor. The objection to the execution of the decree against the judgment‑debtor is that the execution case started by the decree‑holder is liable to be dismissed, because, after the death of plaintiff-decree‑holder during the pendency of the execution case, his heirs who sought to proceed with the execution, have not taken succession certificate to enable diem to proceed with the execution case.
2. The original decree‑holder Jogendra Kumar Nandi obtained a decree for Rs. 516‑1‑0 as costs in Title Suit No. 386 of 1946 in the Court of the Munsif, 2nd Court, Mymensingh (Sadar), and put the decree into execution, being O. C. Execution Case No. 93 of 1952. During the pendency of that execution case he died leaving the present respondents as his heirs and legal representatives. They filed an application for substitution for proceeding with the execution case. The judgment‑debtor, the present appellant, has filed the objection on the ground, amongst others, that opposite‑parties Nos. 1 to 3, the three sons of the original decree‑holder Jogendra Kumar Nandi, are not entitled to continue with the execution case without succes sion certificate in view of the provisions of section 214 of the Succession Act.
3. This point is contested by the present respondents, the heirs of the original decree‑holder Jogendra Kumar Nandi, stating that, in the circumstances of the case, there is no provision for taking out succession certificate in a pending execu tion proceeding.
4. The Courts below held that succession certificate was not necessary to continue with the pending execution case. Hence this appeal.
5. The same point has been reiterated before me. Mr. P. N. Bhattacharyya, the learned Advocate for the appellant, contends that in view of the provisions of section 214 of the Succession Act, no Court shall proceed upon an application of a person claiming to be entitled to the effects of a deceased person or any part thereof 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 a certificate granted under the Succession Certificate Act of 1889. In support of this contention, he relied on the case of Tejraj Rajmal Marwadi v. Rampyari (A I R 1938 Nag. 528), where it has been held that if during the execution proceeding the decree‑holder dies and his wife claiming to be his representative puts in an application praying that her name be substituted and the execution case be proceeded with, such an application comes under section 24 (1) (b) of the said Act, and production of succession certificate is essential, and time should be given for such a production.
6. Mr. D. C. Bhattacharyya, the learned Advocate for the respondents, contends that when the execution proceeding has already been started by the decree‑holder, and in view of the provision of Order XXII, rule 12 of the Code of Civil Procedure, when there is no abatement of the execution proceeding there does not arise any question of substitution, and the Court will proceed with the execution proceeding already started by the original decree‑holder. And, as such, section 214 of the Succes sion Act does not apply, and the heirs of the deceased decree holder need not file any succession certificate. In support of this contention, he has relied on a decision of the Calcutta High Court in the case of Mohammad Yusuf v. Abdur Rahim Bepari and others (I L R 26 Cal. 839).
7. To appreciate the arguments of the learned Advocates of the parties and the authorities relied on by them, I think it necessary to quote the relevant portion of section 214 of the Succession Act:
"214 (1).‑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 of order for the payment of his debt, except on the production by the person so claiming, of‑
(iv) a certificate granted under the Succession Certificate Act, 1889."
In the case of Mohammad Yusuf v. Abdur Rahim Bepari, it has been held:
"Section 4 of the Succession Certificate Act (VII of 1889) 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 his legal representatives who were substituted in his place not having produced any succession certificate."
In that case their Lordships held that clause (b) of sub section (1) of section 4 provides that no Court shall proceed, upon an application of a person claiming to be so entitled to the effects of a deceased person or to execute against a debtor of such a deceased person, a decree or order for the payment of his debt ; and in the case before their Lordships the Court was not proceeding upon the application of a person claiming to be entitled to the effect of the deceased person, but was proceeding originally upon the application of the creditor himself, and it was only during the pendency of the execution proceeding that the original mortgagee‑decree‑holder died and his heirs and legal representa tives were brought on record. Their Lordships did not think that section 4 of the Succession Act was any bar to the proceeding with the execution. In support of this view, they referred to the case of Bald Nath Das v. Shamanand Das (I LR22Ca1. 144). In the case of Tejraj Rajmal Marwadi v. Rampyari, relied on by the learned Advocate for the appellant, a contrary view has been taken, and it has been held:
"What was sought, however, by that application is to be found by reading what was asked for : `The applicant's name be recorded in place of the deceased decree‑holder, and the execution case be proceeded with further.' The grounds for that prayer were two : (1) the husband had died, and (2) the applicant was his heir."
It was further held in that case that since the new rule, Order XXI1, rule 12, was made, the old question whether execu tion proceedings abate on death has been set at rest, and abatement does not apply to execution proceedings, the result of which is that the heirs need not take steps for substitution under Order XXII, but may apply to carry on the proceedings or may file a fresh application. The proper application is not one for sub stitution, but for leave to carry on the pending execution proceeding. Such an application, according to their Lordships' view, would fall within the words "upon an application of a person claiming to be so entitled" and "to be so entit led", according to their Lordships, means as is plain from section 214 (1) (a) "to be entitled to any part of the deceased's estate". So, such an application was necessary before the Court can proceed with a pending execution.
8. I have gone through both the decisions carefully with reference to the provisions of section 214 of the Succession Act. It is no doubt true that such an application is necessary before the Court can proceed with the pending execution case, but that does not mean that the Court is proceeding to execute the decree or order against such a debtor for payment of his debt. It has already proceeded to execute the decree on the application of the deceased decree‑holder. Section 214 of the Succession Act con templates that "no Court shall proceed upon an appli cation . . . . . to execute . . . . . a decree or order for the payment of his debt". The application filed by .the heirs in a pending execution case cannot be said to be an application for execution of the decree, but it is an application to allow the heirs to proceed with the pending execution case, that is, the execution case which was already started by the decree‑holder, as has been pointed out by their Lordships of the Calcutta High Court in the case of Mohammad Yusuf v. Rahim Bepari and others. The point incidentally arose in the case of Nepusi Bewa v. Nasiruddin (27 C L J 400), but their Lordships did not decide the point, but observed, which observation I consider to be an obiter, as follows:
"The claim contemplated by section 4 (1) (a) is a claim made by a person in the capacity of and as a personal representa tive of a deceased person, and from the point of view of the purpose of the statute, as set out in the preamble, it is clearly immaterial whether the decree has to be made in favour of a personal representative, who has himself instituted the suit or in favour of one who has taken the conduct of the suit in hand after its institution by the original creditor. The essence of the matter is that, in both the cases, when the decree is passed, it is passed in favour of a person who claims to be entitled to the effects of the deceased person, and who must consequently produce proof of his representative title. Whether the same principle does or does not apply to execution cases does not arise for consideration on the present Reference, but it may be observed that there appears to be a substantial difference in phraseology bet ween clauses (a) and (b) ; the former contemplates the point of time when the decree is passed ; the latter refers to the point of time when the Court is called upon to proceed on the basis of the application for execution".
In the present case, what I find is that the point of time, when the Court is called upon to proceed is on the basis of the application filed by the decree‑holder himself for execution of the decree, and not the application filed by the heirs of the deceased decree‑holder to allow them to proceed with the execution. Therefore, I have got no doubt in my mind that though clause (b) of subsection (l) of section 214 of the Succession Act applies to a case where the heirs of the original decree‑holder after his death file an application for execution of the decree, it, has got no application where the application for execution of the decree had already been started by the decree‑holder who died during the pendency of the execution case, and his heirs and legal representatives ask leave of the Court to con tinue with the execution case.
9. The result, therefore, is that this appeal is dismissed with costs.
K. B. A. Appeal dismissed.