Obtaining a succession certificate is not necessary for legal representatives to file an application for execution of a decree.

Swatanter Kumar, J.

1. This case has been on the regular Board of this court since last week. Learned counsel for the respondent has not appeared despite repeated calls. Resultantly, this court has no option but to proceed with the hearing of the matter.

2. I have heard the learned counsel for the petitioner at some length.

3. Challenge in this revision is to the order dated 18.4.1983, vide which execution petition filed by the present petitioner was dismissed, as she had failed to obtain a succession certificate prior to the institution of the execution petition.

4. Undisputed facts are that the suit for recovery of Rs. 14,000/- was instituted by Gaja Nand against Hardewa. During the pendency of the suit Gaja Nand is stated to have died and Darka was brought on record, as decree was passed on 2.7.1981. Thereafter the defendant filed an appeal, which resulted in passing of a compromising order dated 7.9.1981 between Hardewa and Darka. As per the compromise decree, if the defendant pays a total sum of Rs. 11,200/- and costs of the suit, as assessed by the learned trial court, on or before 30.6.1982, the decree would stand fully satisfied. As the said compromise was not adhered to, Darka filed execution petition for executing the decree for its full amount. In this execution petition, Hardewa filed objection of 9.10.1982 stating that as no succession certificate had been obtained under Section 214 of the Indian Succession Act, 1925 , the execution petition is not maintainable. This objection was accepted by the learned execution petition was dismissed.

5. The submission raised on behalf of the petitioner herein, is no more resintegra and has been settled by the Division Bench of this court, which is binding upon this court. Thus it would not be necessary for a person to obtain succession certificate before filing an execution petition.

6. Mere fact that debt would be treated as an asset of the deceased, per se would not make it obligatory on a party, to obtain a succession certificate as condition precedent for institution and/or continuation of execution proceedings. Under the provisions of Order 22 Rule 5 of the Code of Civil Procedure, the court is under obligation to determine as to who is the legal representative of the deceased and to grant relief in terms thereof. Reference can be made to the judgment of Division Bench of this court in the case titled as Inder Sain and Anr. v. Nan Singh, (1991-2)100 P.L.R. 640, where the court has held as under:-

"When the petitioners were impleaded as legal representatives in the suit itself the provisions of Section 214 or para 3 of the Punjab and Haryana Rules, Vol. II Ch. 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 no requirement of obtaining succession certificate, as provided in Order 22 of the Civil P.C., to enable the legal representatives of the deceased party to the suit to be substituted as such. As decree holders they were fully entitled to file application for execution of the decree. Section 214 is not at all applicable."

7. In view of the above settled principle of law, the impugned order suffers from an error of jurisdiction and is liable to be set aside.

8. For the reasons aforestated, this revision is accepted. The impugned order dated 18.4.1983 is set aside. The learned executing court is directed to proceed with the exepetition in accordance with law.