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1997 Supreme(MP) 290
1997 (2) JLJ 366
S.S. Jha, J.
Tarabai (Smt.) and others v. Shivnarayan Kothari
Civil Revn. No. 1416 of 1996; Decided on 9.5.1997.
D.K. Kothari for applicants; S.B. Gupta for non-applicant.
Headnote:(1) Succession Act, 1925 -- S. 214 (1) (b) -- word ‘debt‘ used under -- has a wide connotation -- it means an amount due to be paid to the decree holder. [Para 7]
(2) Word and Phrases -- word ‘debt‘ -- meaning -- when there is an obligation to pay a sum of money at a future date -- it is a ‘debt‘ owing -- when the obligation is to pay sum of money in presenti -- it is a ‘debt" due. AIR 1974 SC 1265 followed. [Para 7]
(3) Succession Act, 1925 -- S. 214 (1) (b) -- execution application for receiving the money already deposited in Court -- it is a ‘debt‘ -- succession certificate by heirs of original decree-holder dying during pendency of execution has to be obtained. AIR 1938 Nag. 528 relied on. 1972 MPLJ SN 59 distinguished. 1960 JLJ 950, AIR 1965 Pat. 296, AIR 1982 Cal. 378, AIR 1957 Pat. 435 and AIR 1972 Pat. 37 referred to. [Paras 6, 7 & 8]
¼1½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 214¼1½ ¼[k½ && mica/k ds v/khu iz;qDr ‘‘kCn *_.k* && O;kid vFkZ j[krk gS && blls vfHkizsr gS && fMØhnkj dks lanÙk dh tkus okyh ns; jdeA ¿ iSjk 7À
¼2½ ‘‘kCn rFkk okD; && ‘‘kCn *_.k* && vFkZ && tc dksbZ Hkfo";orhZ rkjh[k dks fdlh /kujkf‘k ds lank; dh ck/;rk gks && rc og nsunkj *_.k* gS && tc ck/;rk /kujkf‘k orZeku esa lank; dh gS && rc og ns; *_.k* gSA , vkb vkj 1974 ,l lh 1265 vuqlfjrA ¿ iSjk 7À
¼3½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 214¼1½ ¼[k½ && U;k;ky; esa iwoZ esa gh fuf{kIr /ku izkIr djus ds fy, fu"iknu dk vkosnu && og *_.k* gS && fu"iknu ds yafcr jgrs gq, e``r fMØhnkj ds okfjlksa ds mÙkjkf/kdkj izek.ki= izkIr djuk gksrk gSA , vkb vkj 1938 ukxiqj 528 voyafcrA 1972 ,e ih ,y ts ,l ,u 59 izHksfnrA 1960 ts ,y ts 950] , vkb vkj 1965 iVuk 296] , vkb vkj 1982 dydÙkk 378] , vkb vkj 1957 iVuk 435 rFkk , vkb vkj 1972 iVuk 37 fufnZ"VA ¿ iSjk 6] 7 ,oa 8À
1. This matter arises out of an execution proceeding. A compromise decree was passed in favour of Sobhagyamal Jain against Shivnarayan Kothari. In this case, as per the terms of decree, the defendant was required to vacate the premises by 1.8.1978. On his failure to vacate the premises, the plaintiff shall execute the decree and secure possession of the suit property along with the costs of the suit and damages with interest at the rate of Re. 1 per cent per month till 1.8.1978 and Rs. 2/- per day after 1.8.78 till the posssession was delivered to the plaintiff. On failure by defendant to vacate the premises Soubhgyamal Jain put the decree in the execution. The entire amount is also deposited in the Court.
2. The decree-holder died during execution and the applicants applied before the Court for substitution of their names as legal representatives of the deceased decree-holder. The trial Court has held that the legal representatives cannot proceed with execution unless they produce succession certificate. Learned trial Court relied upon section 214 (J) (b) of Indian Succession Act, 1925 (hereinafter referred to as the 'Act'). Section 214 (I) (b) of the Act is reproduced below :--
"214. Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons.-- (1) No Court shall --
(a) *** *** ***
(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) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or
(ii) a certificate granted under section 31 or section 32 of the Administration General's Act, 1913, and having the debt mentioned therein, or
(iii) a succession certificate granted under Part X and having the debt specified therein, or (iv) a certificate granted under tl1e Succession Certificate Act, 1989, or
(v) a certificate granted under Bombay Regulation No. VIII of 1927 and, if granted after the first day of May, 1989, having the debt specified therein."
3. The provision prohibits execution, against the debtor, of a decree or order for the payment on his death, except on production of probate or letters of administration, certificate granted under sections 31 or 32 of the Administrator General's Act, 1913, succession certificate granted under Part X, having the debt specified therein.
4. Learned counsel for the applicants submitted that it is not a debt. The amount was damages of rent, which has already been deposited. Since execution of decree was pending upon the death of decree-holder, the applicants are entitled to be substituted in place of decree-holder and it is not necessary for them to produce succession certificate. Learned counsel for the applicant relied upon the judgment in the case of Lakhan Mahto and another v. State of Bihar, AIR 1972 Patna 37, and submitted that permission to withdraw compensation money already in deposit cannot be treated as an application for execution 'of award which amounts to a decree within the meaning of section 214 (1) (b) of the Act. Therefore, production of succession certificate was not necessary. Learned counsel also relied upon the judgment in the case of Raghubir Narain Singh v. Raj Rajeshwari Prasad Singh and others, AIR 1957 Patna 435, and submitted that the provision of section 214 (1) (b) of the Act is not applicable to the execution proceedings already instituted. He submitted that the execution proceedings having once been instituted by the original decree-holder his heirs can continue them without production of succession certificate irrespective of whether they are heirs by the principle of inheritance or by survivorship. Learned counsel relied upon another judgment of Calcutta High Court in the case of Aashakana Sur and others v. Abani Bhusan Sur and others, AIR 1982 Calcutta 378, and submitte
