JUDGMENT :- The question of law which arises for decision in this appeal is whether the legal heir of a decree-holder who filed the execution application can on the latter's death continue those proceedings after being substituted or is it essential for him to obtain a succession certificate. The answer to this question would depend on the interpretation of Section 214(1)(b) of the Indian Succession Act.

2. One Narain Das obtained a decree (No.648 of 1964) against Vishwanath Prasad respondent on the basis of a pronote. On 8-8-1961 the decree-holder himself put the decree in execution. He, however, died on 18-11-1961. On 31-1-1962 the present appellant namely Sri Nath Khandelwal applied that his name be substituted in place of the decree-holder and the execution be continued as he was the legal representative and legatee of the deceased by virtue of a will dated 6-5-1959 executed by the deceased. The judgment-debtor did not file any objection and, therefore, the appellant was substituted in place of the deceased decree-holder. Thereafter on 10-5-1962 the judgment-debtor, however, filed an objection under Section 47 of the Code of Civil Procedure stating that Sri Nath Khandelwal was not the successor of Narain Das deceased decree-holder and that the earlier order substituting him was invalid, and that in any case the execution could not be proceeded with without succession certificate or probate being filed by Sri Nath Khandelwal. It appears that on 6-11-1962 Baij Nath Prasad claiming to be one of the heirs of the deceased decree-holder also filed objections wherein it was alleged that Baij Nath, Sri Nath Khandelwal, Parashotam Das, Ram Nath and Jagannath (nephews of the deceased decree-holder) were the heirs of the deceased and also legatees by virtue of the aforesaid will and hence they were entitled to be substituted as heirs. Evidence was recorded. A certified copy of the will dated 6-5-1959 was filed. Sri B.N. Seth, Advocate an attesting witness of the will was examined and he proved the will. By the order dated 27-11-1962 objections were dismissed but the appellant Sri Nath Khandelwal was required to file a succession certificate or probate of the will and it was ordered that the execution court would not proceed until the probate or succession certificate was filed. The present appellant filed an appeal against this order and contended that the. impugned order was erroneous in law inasmuch as it directed him to obtain a succession certificate as a condition precedent to the continuance of the execution proceedings. The lower appellate court dismissed the appeal and affirmed the order of the executing court. In these circumstances the appellant has filed the present appeal in this Court.

3. I have heard the learned counsel for the parties who have relied on a number of authorities in support of their respective contentions. They have not been able to refer to any direct authority of this Court on this point. On behalf of the appellant reliance was placed on Tejraj Rajmal v. Rampyari. AIR 1938 Nag 528; Ramji Ladha v. Harisanghji Varsalii, AIR 1955 Kutch 6; T. Chacko v. K. Varghese. AIR 1956 Trav-Co 183 and P.L. Basappa v. Siddamma. AIR 1966 Mys 198. The leading case in support of the appellant's contention is the Nagpur decision, though it does not contain elaborate reasonings. The Cutch case sets out the reasoning in some detail. The Travancore Cochin case merely follows the Nagpur and Cutch decisions on the point. The Mysore case is clearly distinguishable on facts. From the summary of facts given in that decision it seems that there the decree-holder himself was not able to file the execution application and it was his widow who put the decree into execution. In those circumstances it was held that Section 214 of the Indian Succession Act applied to the facts of the case and the execution could not proceed without production of the succession certificate.

4. If the above authorities are analysed they disclose two main reaso

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