Punjab-Haryana High Court
Smt. Savitri Devi And Ors. vs Smt. Shimla Devi on 14 September, 1993
Equivalent citations: (1993)105PLR658
ORDER V.K. Jhanji, J.
1. This civil Revision is directed against the order of the Executing Court by the which execution application was ordered to be consigned to records till such tune legal representatives of the deceased decree-holder got succession certificate in their favour from a competent Civil Court.
2. In brief, the facts are that one Sada Ram for obtaining possession of the land which was the subject-matter of the decree, filed execution application on 31.7.1991 but before decree could be executed, Sada Ram died on 1.11.1991. Present petitioners, legal representatives of Sada Ram decree-holder, filed application for getting themselves substituted in place of Sada Ram, Respondent took objection, to their prayer fin the ground that the execution application cannot be continued in absence of succession certificate. This objection found favour with the Executing Court and consequently, the execution application was consigned to records. This order is being impugned in this civil revision.
3. Learned counsel for the petitioner contended that no succession certificate is required for continuing the execution application. According to him, section 214 of the Indian Succession Act, 1925 only bars the institution of the execution application and not for proceeding with such applications which may have been instituted also contended that the judgment relied upon by the trial Court (1990 P.L.J. 432) is not applicable to the facts of the present case. He submitted that without getting succession certificate, petitioners have no right to proceed with the execution application. Counsel made reference to Section 214 of the Indian Succession Act, 1925.
4. Having heard the learned counsel for the parties at length, I am of the view that Section 214 of the Indian Succession Act has no application to the facts of the present case. Section 214 of the Indian Succession Act provides as follows:-
"Section 214:
Proof of representative title a condition precedent to recovery through the Court 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 a person claiming on succession to be entitled to the effect 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 the production, by the person so claiming, of -
(i) a probate, or letters of administration evidencing the grant to him of administration to the estate of the deceased, or
(ii) a certificate granted under section 31 or section 32 of the Administrator General's Act, 1913, and having a debit mentioned therein, or
(iii) a succession certificate granted under Part X having the debt specified therein, or
(iv) a certificate granted under the Succession Certificate Act, 1889, or
(v) a certificate granted under Bombay Regular No. VIII of 1827, and, if granted after the first day of May, 1889, having the debit specified therein."
5. A bare perusal of the aforesaid section would show that it applies only where the suit was started by the creditors. For application of this section the claim must be for recovery of a debt and relationship of creditor must exist. The debit must be owing at the death of the deceased. The claimant must be claiming to be entitled to the effect of the deceased. The claim must be against the debtor of the deceased. Thus, in a suit like the present one, where the suit is for possession of land, Section 214 of the Indian Succession Act will not be attracted and resort shall have to be made to the provisions contained in Order XXII....... of the Code of Civil Procedure which provides for bringing on record the legal representatives of the deceased plaintiff or defendant.
6. Faced with this situation, learned counsel for the respondent contended that Order XXII Rule 12 of the Code of Civil Procedure specifically bars the application of Order XXII to the proceedings in execution of a decree or order. I find no merit in this contention. Order XXII Rule 12 provides that nothing in Rules, 3, 4 and 8 shall apply to proceedings in execution of a decree or order. The only provisions specified as not applicable to execution proceedings are contained in Rules 3, 4 and 8. Even as these rules, it is only as to the abatement of proceedings that those rules do not apply. Rule 12 engrafts an exception and says that the period of limitation does not apply meaning thereby that the execution proceedings would not abate on the death of a decree-holder or judgment debtor and can be continued by or against the legal representatives of the deceased party on an application made for the purpose. No limitation is provided for making such application. Thus, in a case like the present one, on the death of decree-holder pending the execution proceedings, his legal representatives can get themselves substituted and carry on the proceedings and they need not present a separate execution application or require succession certificate as contended by learned counsel for the respondent.
7. The judgment relied upon by the Executing Court has no application to the facts of the present case as in that case execution was on behalf of joint decree-holders and was for recovery of enhanced amount of compensation and on the death of one of the decree-holders, it was held that the provisions of Order XXII Rule 15 of the Code of Civil Procedure would come into operation entitling all joint decree holders to execute the decree for the benefit of the survivors of the deceased and for the benefit of the legal representatives of the deceased. Requirement of succession certificate as provided under Section 214 of the Indian Succession Act was considered not to be necessary. In the present case, as already noticed, the execution is with regard to possession of land to which section 214 of the Indian Succession Act is not attracted.
8. For the reasons recorded above, this civil revision is allowed and the impugned order is set aside. The Executing Court is directed to allow the legal representatives to proceed with the execution. No costs.