RAMADOSSTHATTUVANDAIYAR Vs. KAMALATHAMMAL

JUDGEMENT

(1.) THIS revision petition is directed against order of the executing Court dismissing an application for execution filed by the petitioner herein. The petitioner's father obtained a decree in O.S.No.222 of 1962 for recovery of money against the respondent. He died on 15.2.1979. The petitioner filed the execution petition on the ground that under a will dated 23.9.1973 the petitioner's father bequeathed the entire decree in favour of the petitioner and he was entitled to execute the same. In the petition he also averred that apart from the will he was entitled to execute the decree as one of the sons of the deceased decree-holder.

(2.) THE genuineness of the will was contested by the respondent. THE court below, after considering the evidence on record, came to the conclusion that the petitioner failed to prove the will. THE question is one of fact and I do not find any infirmity or fallacy in the order of the court below. THE finding has to be confirmed.

(3.) IT is contended by learned counsel for the petitioner that even in the absence of a will the petitioner being one of the sons of the deceased decree-holder is entitled to execute the decree on behalf of the legal heirs of the decree-holder. According to him, it is the duty of the court to issue summons to the other heirs of the decree-holder and proceed with the execution. He placed reliance on the judgment in Taruck Chamunder Butt Acharjee and others v. Gagoos Romesh Chunder Mitter, 11 Southern Law Weekly Reporter 488. In that case the question related to a consent of decree-holders of two cross-decrees fixing the mode in which set off should be made. The court held that it would prevent one of the decree-holders from executing his decree without giving credit to the decree obtained by the other decree-holder and it would be most inequitable to allow one of the decree-holders to execute his decree alone. In that context they made a reference to Sec.207 of the Act 18 of 1859 which related to two or more decree-holders. Under Sec.207, even though one of the holders of the same decree may take up execution of the whole decree he cannot be allowed to take out execution of the decree to the extent of his own interest only. The said decision has no bearing on the present case.