Punjab-Haryana High Court
Inder Sain And Another vs Man Singh Gujjar on 5 September, 1991
Equivalent citations: AIR1992P&H130, (1992) 1 RRR 58, (1992) 1 RENCR 105, AIR 1992 PUNJAB AND HARYANA 130, 1991 PUNJ LJ 637, 1991 HRR 574, (1995) ILR 1 P&H 1, (1991) 2 PUN LR 640, (1991) 2 RENTLR 435, (1992) 1 LANDLR 247, (1992) 1 CURLJ(CCR) 176, (1994) 1 BANKLJ 278
Author: H.S. Bedi
Bench: H.S. Bedi
ORDER A.L. Bahri, J.
1. In view of the importance of the questions involved in this case, the civil revision was admitted to D.B.
2. Banwari Lal filed a suit for recovery of Rs. 11,000/- against Man Singh. During the pendency of the suit he died on 1-3-1977. His legal representatives were brought on the record as plaintiffs on 30-6-1977. Ultimately the suit was decreed on 31-1-1978. The decree has become final as no appeal was filed against the same. On 27-2-1978, the decree-holders Inder Sain and another filed execution. It was dismissed on the ground that they had not obtained succession certificate on the death of Ranwari Lal with respect to debts for which the suit was filed. After obtaining the necessary certificate Inder Sain and another again filed execution application on 22-1-1984. The judgment-debtor, Man Singh, raised objections which were disposed of by the impugned order by the executing Court on 31 -8-198. The objections were allowed and the execution application was dismissed on the ground inter alia holding that the succession certificate was procured after expiry of limitation of three years, from the date of death of Banwari Lal.
3. Learned counsel for the petitioner has argued that when the petitioners were im-pleaded as legal representatives in the suit itself, the provisions of S. 214(1)(b) of the Indian Succession Act or Para 3 of the Punjab and Haryana High Court Rules, Volume II, Chapter 6(B) would not be applicable. It was not at all necessary for the petitioners to obtain succession certificate to enable them to file application for execution of the decree in which they were already decree-holders. There is merit in this contention. There is no requirement of obtaining succession certificate, as provided in Order 22 of the Code of Civil Procedure, to enable the legal representatives of the deceased-party to the suit to be substituted as such. If the cause of action had survived on the death of the plaintiff on his legal representatives, they had a legal right to be substituted as plaintiffs in such a suit. In the present case, their application for becoming as plaintiffs on account of the death of Banwari Lal, plaintiff, was accepted and they were substituted as plaintiffs. Ultimately decree was passed in their favour and as decree-holders they were fully entitled to file application for execution of the decree. S. 214 of the Indian Succession Act on which reliance was placed by the executing Court is not at all applicable to the facts of the case in hand.It reads as under:--
S. 214 "Proof of representative title a condition to recovery through the Courts of debts from debtors of deceased persons:- -
(i) 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 party 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--
(1) 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 S.31 or S. 32 of the Administrator General's Act 1913, and having the debt mentioned therein, or
(iii) a succession certificate granted under Part X and having the debt specified therein, or
(iv) a certificate granted under the Succession Certificate Act, 1889, or
(v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted after the first day of May, 1889, having the debt specified therein.
(2) The word 'debt' in sub-sec. (1) includes any debt except rent, revenue or profits payable in respect of the land used for agricultural purposes.
The aforesaid provision refers to making claim for getting a decree passed on the basis of a debt which was due to a person who had already died. Obviously before obtaining succession certificate the legal representatives of the deceased-creditor could not approach the Court for passing a decree in their favour as such. When the original suit was filed by the creditor, Banwari Lal, himself and his legal representatives were substituted as plaintiffs during the pendency of the suit, S. 214 of the Indian Succession Act would not be attracted. On the same ground para 3 of the Punjab and Haryana High Court Rules, Vol. II, Chapter 6(B) would not be attracted to the case in hand. After the decree is passed, the decree-holders are not claiming to be entitled to recover a debt or asking for decree to be passed in their favour on account of any debt due to them or to the deceased Banwari Lal. They are to execute the decree of a claim already adjudged. The matter was considered by S. P. Goyal, J., in Kali Ram v. Ishwar Singh, 1980 Rev LR 51. In that case in an appeal filed against the decree, the legal representatives of the deceased-plaintiff were brought on the record who subsequently filed application for execution of the decree passed in the suit. It was held that as the legal representatives had a right to continue execution proceedings without procuring any certificate under S. 214 of the Indian Succession Act. We fully agree with the views expressed in that case.
4. Learned counsel for the petitioner has referred to the decision of Bombay High Court in Abdul Majid v. Shamsherali Fakruddin, AIR 1940 Bom 285 wherein the contrary view was taken. While referring to 0.22 of the Code of Civil Procedure, it was observed that on the death of a plaintiff his legal representatives were to be brought on the record otherwise the suit was to abate. However, S. 214 of the Indian Succession Act would come into operation when the Court is called upon to pass the decree and on that day succession certificate must be there is enable the plaintiff to get the suit decreed. While referring to the non-obtaining of the certificate as required under S. 214 of the Indian Succession Act it was observed as under (at p. 286) :--
"The provisions of S. 214, Succession Act, are no more preemptory than the provisions of S. 35, Stamp Act, or S. 49. Registration Act, which forbid the Court to receive certain documents in evidence. If the Court docs, in breach of those provisions, improperly receive documents in evidence, that is an error which can be corrected in appeal, but it does not render the decree a nullity. In the same way the omission to obtain a succession certificate is good ground of appeal, but if the decree is not appealed from, in my opinion it remains a valid decree and cannot be regarded as a nullity."
5. Assuming for the sake of arguments, it is held that succession certificate was required for the Court to pass the decree, objection regarding the same could not be permitted to be raised in the execution proceedings as the decree passed in favour of the legal representatives of Banwari Lal had already become final having not been challenged in appeal. The aforesaid decree cannot be passed in favour of the legal representatives, they would be deemed to be the decree-holders and entitled to execute the same. A party to a suit is not required to obtain succession certificate to enforce the decree.
6. The learned counsel for the petitioner has argued that the succession certificate in the present case was obtained after three years of the death of Banwari Lal and is not valid. This contention again has no merit. As already stated above, succession certificate legally is not required and secondly even if it was so required the decree-holders obtained the same before filing the second execution application. The grant of succession certificate could be opposed in those proceedings when notice was published. In the present execution proceedings validity of the succession certificate cannot be challenged.
7. When the first execution application was filed on 24-8-1982, the present petitioners being decree-holders were entitled to execute the decree. Even if it was dismissed as unsatisfied on the ground that they had not obtained the succession certificate in their favour, they filed the second execution application on 2-1-1984 after obtaining such a certificate. Under Art. 136 of the Indian Limitation Act, 12 years period is provided for executing the decree. The present application was well within 12 years. Even otherwise the present application for execution was filed within 3 years of the disposal of the previous execution application. As it was not necessary for the decree-holders to obtain succession certificate, the present application was to proceed accordingly to law.
8. For the reasons stated above, this revision is allowed. The impugned order of the executing Court is set aside. The parties are left to bear their own costs. The parties through their counsel are directed to appear before the executing Court on 30-9-1991.
9. Petition allowed.