GOPALA PANICKER Vs. ASSANISSA

JUDGEMENT

(1.) Two points have been pressed before me in this second appeal neither of which has been adverted to by because, obviously, they have not been pressed before the Courts below. The point taken viz., that the execution of the decree in question could be allowed only on production of a succession certificate, was upheld by both the Courts because, as presented before them, it was a debt which was, sought to be enforced and naturally, S.214(1)(b) of the Succession Act applied since it was the stage of execution.

(2.) While I have no doubt that the Courts below have stated the correct law they have missed two aspects which have been dealt with before me at the bar. The suit was one for redemption of a mortgage and it is obvious that neither such a suit nor an execution of a redemption decree, requires production of succession certificate. The mortgagor is the debtor and is seeking to pay off a debt and naturally, S.214 has no place in such an action. We are, however, concerned with a case where execution relates to the cost part of the decree which is undoubtedly a debt and the mesne profits which have been decreed. Since the costs decreed (that amount is being adjusted towards the mortgage amount) are not sought to be recovered in execution. S.214(b) is not attracted to that portion of the decree. All that he is seeking to do is to execute the balance portion of the decree, having adjusted the cost portion against the mortgage debt which he has to deposit.

(3.) In regard to the mesne profits, it may amount to a debt and the decree holder would have bad to produce a succession certificate but for S.214(2) which expressly excludes from the concept of debt "profits payable in respect of land used for agricultural purposes". In this case, it is fairly clear, and it is not disputed before me, that the mesne profits have arisen from land used for agricultural purposes. Therefore, the decree for mesne profits falls outside the scope of debt and cannot attract the bar of S.214.