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CALCUTTA HIGH COURT
Newbould, J.
Kshetra Mohan Paddar & Ors. - Appellant
Versus
Azizullah Mea & Ors. - Respondent
Decided On : 10-06-1920
Substitution - Execution Proceedings - Succession Certificate Act - Jagat Tarini Dasi v. Rakhal Chandra Tewary - The court held that it is not necessary to take out a certificate under the Succession Certificate Act when the decree-holder has died during the pendency of the execution proceedings, and that substitution should be allowed as prayed for, and execution will proceed.
Fact of the Case:
The case involves an application for substitution in execution proceedings where the decree-holder had died during the pendency of the proceedings.
Finding of the Court:
The court found that the learned Subordinate Judge erred in rejecting the application for substitution. The court held that it is not necessary to take out a certificate under the Succession Certificate Act when the decree-holder has died during the pendency of the execution proceedings, and that substitution should be allowed as prayed for, and execution will proceed.
Issues: Whether a certificate under the Succession Certificate Act is required when the decree-holder has died during the pendency of the execution proceedings, and whether substitution should be allowed.
Ratio Decidendi: The court relied on the decision in Mahomed Yusuf v. Abdur Rahim and Jagat Tarini Dasi v. Rakhal Chandra Tewary to hold that a certificate under the Succession Certificate Act is not required, and that substitution should be allowed.
Final Decision: The court made the Rule absolute, set aside the order of the Subordinate Judge refusing substitution, and allowed the substitution as prayed for, with execution to proceed.
JUDGMENT
Newbould, J. - The learned Subordinate Judge has, I think, erred on both the grounds on which be rejected the application for substitution. The concluding portion of the ruling to which he refers--Mahomed Yusuf v. Abdur Rahim 26 C. 839 : 4 C.W.N. 558 : 13 Ind. Dec. (N.S.) 1138 shows that it is rot necessary to take out a certificate under the Succession Certificate Act when the decree-holder has died during the pendency of the execution proceedings. As regards the second point, it is only necessary to refer to the decision of this Court in the case of Jagat Tarini Dasi v. Rakhal Chandra Tewary 3 Ind. Cas. 324 : 14 C.W.N. 752 : 10 C.L.J. 396 and more particularly to the remark at page 753 Page of 14 C.W.N.--Ed. in the paragraph commencing with "On behalf of the respondent a preliminary objection has been taken."
2. The Rule is made absolute and the order of the Subordinate Judge, dated the 2nd December 1919, refusing substitution is get aside. Substitution will be made as prayed for and execution will proceed.
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