PRASANNA S MENON Vs. NARAYANAN NAIR

JUDGEMENT

(1.) This revision is in challenge of the order passed by learned SubJudge, Kozhikode while executing the decree in O.S.No.306 of 1990. That decree was obtained by one G.K. Menon for recovery of money from the respondent/judgment debtor. The decree was passed on 7.2.1991. G.K.Menon died on 6.8.1991 issue less but, leaving behind his wife, Annalakshmi Amma. She died on 24.2.1692. It is stated that her sister, Sreedevi Amma executed a Will in favour of petitioners on 23.1.1995 whereby the decree was bequeathed to the petitioners. The said Sreedevi Amma died on 1.4.1996. Petitioners filed O.P.No.77 of 1994 under S.372 of the Indian Succession Act (for short, "the Succession Act") for issue of a certificate of succession to execute the decree against the respondent as required under S.214 of the said Act. The Succession Court passed Ext.P 1, order pursuant to which Annexure-6, certificate was issued to the petitioners enabling them to collect the amount due under the decree. Pursuant, to Annexure-6, certificate petitioners filed E.P.No.80 of 2003 against the respondent. As I am told, notice under R.22 of O. XXI of the Code of Civil Procedure (for short, "the code") was issued to the respondent. Respondent filed counter affidavit contending that petitioners, notwithstanding Annexure-6, certificate are not entitled toexecute the decree since they are neither legal heirs of the deceased G.K.Menon or his wife, Annalakshmi Amma, nor entitled to execute the decree being an assignee to the decree. On that objection learned Sub Judge passed the impugned order and dismissed the execution petition.

(2.) Learned counsel for petitioners has contended that the decision of learned Sub Judge is patently erroneous in that learned Sub Judge has not taken into account the legal effect of S.381 of the Act. According to the learned counsel, the order in the Succession proceeding operate as a judgment in rent binding the respondent and hence respondent is bound to pay the amount due under the decree. It is also contended by learned counsel that petitioners, armed with Annexure 6, certificate is entitled toexecute the decree as provided under S.214 of the Act and that respondent cannot resist execution. Learned counsel has placed reliance on the decisions in Ganga Prasad v. Mt.Saeedcut & Ors., 1952 AIR(All) 801, Sint. Sawarni v. Inder Kaur and Ors., 1996 AIR(SC) 2823and Madltvi Amnta Bhawani Amma & Ors. v. Kanjikutty Pillai Meenakshi Pillai, 2000 6 SCC 301).

(3.) Per contra, it is by learned counsel for respondent that when notice under R.22 of O.XXI was issued to the respondent, he was entitled to object to the execution of the decree by the petitioners notwithstanding that, petitioners obtained Annexure-6, certificate in their favour. It is contended by learned counsel that so far as petitioners are not the legal heirs of the decree holder or his wife who succeed to his estate nor there is any assignment of the decree in writing or by operation of law in favour of petitioners, they are not entitled to execute the decree. According to the learned counsel, it is a different matter if respondent pursuant to Annexure 6, certificate paid the amount would get a complete discharge of his liability under the decree. It is also contended by learned counsel that petitioners are not entitled to the decree amount even under the Will in question since Sreedevi Amma who is said to executed the Will was not the legal heir of G.K..Menon or Annalakshmi Amma as the case may be. Learned counsel has placed reliance on Ss. 15 to 17 of theHindu Succession Act (for short, "the Succession Act").