A succession certificate is not necessary to execute a maintenance decree with a charge.

A. GANGADHARA RAO, J.

( 1 ) TADIMALLA Rattamma, obtained a decree against the petitioners for maintenance with a charge over their immovable properties for realisation of the amount decreed. She died after obtaining the decree. Before her death, she executed a will on 12th Sept. , 1974 bequeathing the maintenance decree in favour of her daughter, Nidamarthi Kamala Kumari, the respondent. The respondent filed E. P. No. 55/1975 in the Court of the Subordinate Judge, Eluru, for execution of the decree. The petitioners--judgment --debtors took a preliminary objection that the execution petition was not maintainable without producing the succession certificate under S. 214 (1) (b) of the Indian Succession Act , 1925. The learned Subordinate Judge held that the charge was in the nature of a simple mortgage and no succession certificate was necessary, for proceeding against the property in execution. In this connection he relied upon Ramaswami V. Venkanna, AIR 1963 Andh Pra 135 and Ruprao V. Ram Rao, AIR 1952 Nag 88. He also observed that the decree included costs of the suit and no succession certificate was necessary for execution of a decree for costs. He relied upon S. Rajyalakshmi V. Smt. S. Sithamahalakshmi, 1976 ALT 300: (AIR 1976 Andh Pra 361 ). In the result, he overruled the preliminary objection raised by the petitioners and held that the petition was maintainable without producing the succession certificate.

( 2 ) IN this revision it is submitted by learned counsel for the petitioner that charge created by a decree is not a charge within the meaning of S. 100 of the Transfer of Property Act and, therefore, it cannot be executed as if it is a mortgages decree. In this connection strong reliance was placed on the Full Bench Judgment of this Court in Naganna + V. J. K. Rangarao, AIR 1959 Andh Pra 622. It was also submitted that a charge is different from a mortgage, and that the learned Judge erred in holding that the charge is in the nature of a simple mortgage and no succession certificate is necessary.

( 3 ) THE question for my consideration is whether the respondent can execute the decree for maintenance with a charge, that was bequeathed to her by her mother under a will, without producing the succession certificate? Section 214 of the Indian Succession Act, to the extent it is relevant, reads as follows:---"214. Proof of representative title a condition precedent to recovery through the Courts if 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 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 the production, by the person so claiming of----- (I) and (ii) -------- (iii) a succession certificate granted under Part X and having the debt specified therein. (2) The word "debt" in sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes. "

( 4 ) IN view of this Section, no Court can execute a decree against the judgement -debtor for the payment of a debt due to a deceased decree--holder, which a person claims on succession, except on production of a succession certificate.

( 5 ) IT us true that a Full Bench of this Court held in Naganna Naidu V. J. K. Rangarao (AIR 1959 Andh Pra 622) (supra) that a charge created by operation of law within the meaning of S. 100 of the Transfer of Property Act. In that case, a maintenance decree charge was passed by a Court. S. 100 provides, that the provisions which apply to a simple mortgage shall, so far as may be, apply to a charge contemplated by that Section. O. 54, C. P. C. refers to suits relating to mortgages of immovable property. R. 15 of that order relates to mortgages by the deposit of title-d

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