ELSY Vs. STATE OF KERALA

JUDGEMENT

(1.) The applicants in EA 353/2007 and 354/2007 in EP 340/2003 in OS 55/1994 are the petitioners in this writ petition. EA 353/2003 is an application for impleadment of the petitioners as additional decree holders 2 to 6. EA 354/2003 is filed seeking consequent amendment to be made. Petitioners, in order to prove that they are the legal heirs of the decree holder, produced family membership certificate issued by the Officer concerned. The Court below, by Ext. P3 order, following the decision of this Court in Ramakrishnan Nair v. Easwari Amma, 1979 KHC 133 : 1979 KLT SN 60 : AIR 1979 Ker. 231 : 1979 KLN SN 27 : 1979 KLT 401 and also the decision in M. C. Sreedharan v. Pattieri Kumaran, 1981 KHC 430 : 1980 KLN SN 58 : AIR 1981 Ker. 51 held that the petitioners cannot be allowed to be impleaded as additional decree holders to proceed with the application except on production of succession certificate and hence the case was adjourned to 28/05/2007 for production of such succession certificate. Petitioners seek to quash Ext. P3 order on the ground that they are not liable to produce any succession certificate as contemplated under S.214 of the Indian Succession Act. They also seek for a direction to the Court below to permit them to get themselves impleaded as additional decree holders in EP 340/2003 and continue the execution proceedings without insisting for the production of succession certificate. The matter came up for consideration before a learned Judge of this Court, who considered the decisions cited supra as also various other decisions rendered by various other High Courts and held that in view of the various pronouncements which holds the view that succession certificate is not necessary when the decree holder dies pending execution petition and opined that the matter requires reconsideration. Accordingly the case was referred for decision by a Division Bench and that is how the matter come up for consideration before us.

(2.) According to the learned counsel appearing for the writ petitioners, the decision of the Court below insisting for production of succession certificate, in the facts and circumstances of the case, is wrong. It was also contended that the provisions contained in S.214(b) of the Indian Succession Act and the bar created thereunder for proceeding with an execution application by a person claiming to be so entitled to' execute a decree for realization of a debt except on production of a succession certificate will apply only to a substantive application filed for executing the decree by such person and will not apply to a case where the death occurred during the pendency of the proceedings in which the legal representatives are entitled to be impleaded to continue the proceedings already initiated by the decree holder. In this connection, reference was also made to O.21 R.1 of the Code of Civil Procedure to contend that by virtue of the above provisions, on making deposit of the decree amount before the execution Court and in the absence of any objection on the side of the decree holder, the judgment debtor gets discharged of his liability under the decree, As such there is no further debt existing as against the decree holder and in this case, at the time when the application EA 353/2007 and 354/2003 were filed, amounts were already deposited by the judgment debtor and reported the same to the Court and except withdrawal of the said amount which is in deposit, no further proceeding remained to be completed. Hence in any view of the matter, the provisions contained in S.214 of the Indian Succession Act is not attracted. They also contended that the decision in Ramakrishnan Nair's case, 1979 KLT 4011 is not applicable to the facts and circumstances of the present case. He also placed reliance on some of the decisions by various High Courts.

(3.) The learned Government Pleader, on the other hand, supported the finding of the Court below, based on the decision reported in Ramakrishnan Nair's case, 1979 KLT 4011. We heard both sides.