RODDAPPA Vs. K V RAVINDRANATHA GUPTA

JUDGEMENT

(1.) THE trial court after holding that THE defendant/mortgager was not a debtor wilhin THE mcaning of THE Karnataka Debt Relief Act, 1980 dismissed THE suit on THE ground that THE plaintiffs being THE l. Rs. Of THE mortgagee were not entitled to maintain THE suit without obtaining THE succession certificate. Hence, it dismissed THE suit. In THE appeal preferred by THE plaintiffs, THE defendant/mortgager did not challenge THE correctness of THE finding recorded by THE trial court that he was not a debtor within THE meaning of karnalaka Debt Relief Act, 1980. The only contention advanced was that THE trial court was right in holding that THE suit could not have been maintained by THE plaintiffs without obtaining THE succession certificate. The lower appellate court, on considering THE Provisions contained in Section 214 of THE Indian succession Act, 1925 and on placing reliance on a decision of THE High Court of Kerala in aysha been mariya ummal kunju and oTHErs v abdul karim rahuma been and oTHErs, reported in AIR 1972 Kerala 64 has held that for THE purpose of enforcement of THE right of a mortgagee, THE, legal representatives of THE mortgagee are not required to obtain a succession certificate. Accordingly, following that decision THE lower appellate court has allowed THE appeal and set aside THE judgment and decree of THE trial court and has decreed THE suit. Consequently it has passed a preliminary decree.

(2.) NO doubt there is a relationship of a debtor and a creditor in the transaction of mortgage between the mortgager and the mortgagee; but, enforcement of the right of a mortgagee to recover the mortgage money by sale of mortgaged property does NOt fall under Section 214 of the Indian Succession Act. The decree for fore-closure to recover the mortgage debt by sale of mortgaged property in the event, the mortgager fails to pay the mortgage debt within the specified time is NOt a simple decree for recovery of debt within the meaning of Section 214 of the Indian Succession Act. Hence the heirs of the deceased mortgagee are NOt required to produce a succession certificate in a suit for fore-closure. This view of mine accords with the view expressed in the aforesaid aysha bcevi mariya ummalkanju's case,'wherein after considering several decisions of the various high courts, it has been held as follows: