A succession certificate is not required to execute a decree for costs.

JUDGMENT :

1. This appeal is directed against the order passed by the ??? Judge, City Civil Court, Hyderabad dated 22nd day of April 1975 over-ruling the objections raised by the judgment-debtor and directing the decree-holders to take further proceedings in the execution petition.

2. It was contended by the learned Counsel for the appellant that without obtaining a succession certificate, the respondent could not proceed with the execution of the decree. To understand the above contention, it is necessary to state the brief facts, which are as under:—

3. The respondent filed O.S. No. 6/1973 before the Chief Judge, City Civil Court, Hyderabad for partition of the suit schedule properties. A preliminary decree was passed on 31-7-1973 and costs were awarded to the plaintiff against the 1st defendant. On 5-3-1974, the sole plaintiff died and his legal representatives were brought on record on 2-9-1974. Thereafter, E.P. No. 5/75 was filed on 9-3-1975. The judgement-debtor filed a counter affidavit in E.P. No. 3/75 stating therein that the decree-holder died in 1974 after the passing of the preliminary decree. The legal representative i.e., the present petitioners cannot execute the decree unless he obtains a probate or a succession certificate from a competent court. Therefore, the execution petition is not sustainable and liable to be dismissed in limine. He also pleaded payment of come amounts, with which we are not now concerned. The lower Court passed the following order which is veryshort.

“This E.O. is filed to execute a decree for costs passed against the J.D. originally in favour of Smt. Sitamahalaxmi her mother-in-law. Smt. Sitha Mahalaxmi is since dead. Her second son was brought on record as the legal representative in I.A. No. 200/74 on the basis of the will executed in favour of her second son. There is therefore no force in the contention that any succession certificate is required. I do not consider (1969) 2 A.W.R. 479, as applicable to the facts of this case. The payments pleaded are uncertified and they cannot answer the claim made in this E.O. In any manner when the payments are not got certified within time. Objections raised in the counter are over-ruled. Attach by Pro-order and notice to granishee. 24-6-1975.”

4. The learned Counsel for the appellant contended that unless a succession certificate is produced the respondent cannot proceed with the execution petition. The lower court has not given any cogent reasons for over ruling the objection raised by it. The order of the lower court already extracted only stated that as the second son was brought on record as a legal representative, it was held that no succession certificate is required. What is contended by the Counsel for the appellant is that if the second son is brought on record as a legal representative in O.S. Proceedings that itself is not sufficient if the L.R. wants to file the execution petition against the appellant. It is necessary that he must obtain and file a succession certificate in E.P. He relied upon Kotipalli Apparao v. Jakkam Venkanna(1) wherein it ??? as held by a Bench of this court that ‘Having regard to the aforesaid interpretation of the provisions of section 214(1)(b) of the Indian Succession Act by a Bench of this court, we have to agree with the Court below that it is not open to the petitioner to apply for execution of the decree obtained by his father without obtaining and producing a succession certificate as he claims by succession and mot by survivorship.”. Their Lordships were pleased to hold ??? at “Unless a succession certificate is produced, the execution proceedings could not be taken by a person who succeeded to the property on the basis of the will executed by the deceased decree-holder”. He further relied upon K. Laxminarayan v. V. Gopalaswami(2) where Kumarayya J. (as he ??? was) was pleased to hold that section 214 ??? apply to a case where the devolution of interest is by survivorship, i.e. if the devolution was