1981 Supreme(MP) 309

B.C. Varma, J.
Satyabhamabai v. Anant Rao Nampalliwar
C. Revn. No. 1625 of 1980 (J); Decided On 24-4-1981.

Headnote:Succession Act, 1925-S. 214 (1) (b)-bar under-applicability of-decree holder dying during pendency of execution-bar enacted under is equally applicable to LRs-L.R.s cannot proceed with execution without obtaining Succession Certificate.

        This revision involves question of interpretation of section 214 (1) (b) of the Indian Succession Act, 1925. On the question whether the application mentioned in clause (b) of sub-section (1), refers, to an application by the original decree-holder or by persons claiming of succession, the views of the High Courts are not unanimous. According to one view, the but is created only in respect of initial application made by a person claiming on succession to execute the decree. All such High Courts holding this view have relied upon a decision of Calcutta High Court in Mohammed Yusuf v. Abdul Rahim Bopari (ILR XXVI Cal. 839). The other High Courts which have shared this view are Patna, Andhra Pradesh and Madras (See Lal Kumari v. Fulmati Kuer (AIR 1965 Patna 296), Mabukan v. Rajamma (AIR 1963 A.P. 69) and Ramanatha v. K.V. Kuppuswami (AIR 1971 Mad. 419). The view of these Courts is that it is only an application for execution flied by the decree-holder himself that comes within the prohibition enacted in section 214 (1) (b). It does not apply to a person, who seeks to come on record as the legal representative of a decree holder for the purpose of continuing that application. The view, therefore is that the continuance of an execution application filed by the decree-holder himself, by his legal representatives after the death of the decree-holder is no hit by section 214 (1) (b). The other view, which is contrary to the view expressed In Mahommed Yusufs case (supra) and shared by the Patna, Andhra Pradesh and Madras High Courts as stated above, is that the bar created by section 214 (I) (b) is equally applicable to the execution application instituted by the decree holder, himself and sought to be prosecuted further upon his death by his legal representatives who claim to his estate on succession. This is the view held by a Division Bench of the Nagpur High Court in Tejraj Rajmal v. Rampyari (AIR 1938 Nag. 528). The reasoning of the Division Bench of the Nagpur High Court is that since the abatement does not apply to execution proceeding, the heirs of the deceased decree holder need not take steps for substitution in a pending execution and the propel application would be for leave to carry on or proceed with the pending execution proceedings. Such an application would be "of a person claiming to be so entitled" within the meaning of section 214 (1) (b). "To be so entitled" means entitled to any part of the estate of the deceased. The view, therefore, is that when a person claiming on succession applies for proceeding further with a pending execution application filed by the decree-holder, he claims to be entitled to the estate of the deceased and the application is by a person to be entitled to any part of the deceaseds estate and therefore, is within mischief of section 214 (1) (b). This view is shared by Rajasthan and Travancore-Cochin High Courts [See Ganeshmal v. Anandkanwar (AIR 1968 Raj. 273). Nandlal v. Mahavir Kumar, (AIR 1974 Raj. 189) and Thoma Chacko v. Koshi Varghese (AIR 1956 Travancore 183) J.

        Held: I prefer to follow the later view which is in line with the view propounded by the Nagpur High Court in Tejrajs case (supra) and hold that an execution application tiled by the decree-holder for realising the amount under a decree for payment or debt cannot be permitted to be prosecuted further by his legal representatives claiming on succession upon his death without obtaining a Succession Certificate. (ILR) 26 Cal. 839, AIR 1965 Pat. 296, AIR I965 A.P. 69 and AIR 1971 Mad. 419 dissented from, AIR 1938 Nag. 528=24 MPLC 76, AIR 1968 Raj. 273, AIR 1914 Raj. 189 and AIR. 1956 Travancore, 183 relied on Revision dismissed.