MARAKKAL Vs. ESWARI AMMAL

JUDGEMENT

(1.) THIS revision is directed against the order passed by the court below directing the legal representatives of the decree holder to produce succession certificate as a condition precedent for proceeding further in the execution petition. It is seen that the Court below relied on the decision of the Orissa High Court reported in Aparti Pande v. Govinda Sahu, A. I. R. 1984 orissa 1, and directed the revision petitioner to produce succession certificate for continuing the proceedings as a condition precedent. Learned counsel for the revision petitioner drew my attention to the case reported in ramanatha Reddi V. Kuppuswami Mudaliar, (1971)1 M. LJ. 246: A. I. R. 1971 Mad. 419: 84 lw. 200. It is seen that a single Judge of Orissa High Court had held that legal representatives cannot continue such execution proceedings without being required to produce succession certificate. On the other hand, Ramanujam, J. has held in ramanatha Reddi V. Kuppuswami Mudaliar, (1971)1 M. LJ. 246: A. I. R. 1971 mad. 419:84 LW. 200, that under section 214 (1) (b) of Succession Act the legal representatives need not produce succession certificates, to continue the execution proceeding initiated by the deceased decree-holder and the application for substitution cannot be treated as a fresh application for execution so as to attract secttion 214. The learned Judge has elaborately considered the various rulings and observed- On a fair reading of sub-S. (l) (b) of section 214, it has to be taken that the bar is only against institution of execution proceedings by a person claiming on succession, and does not bar the continuance of the proceedings already initiated by the deceased. It is well established that in view of O. 22, R. 12, C. P. C. execution proceedings cannot abate on the death of the petitioner and the legal representatives can therefore continue the proceedings without filing a separate execution petition, by substituting themselves under section 116 and O. 21, R. 16, C. P. C. Once the legal representative substitutes himself as the petitioner in the execution petition already filed by the deceased decree holder, the execution has to proceed and the legal representatives need not further prove that he is a person entitled to execute the decree against the particular debtor on succession. It cannot also be treated as a fresh application for execution by the legal representative claiming himself to be entitled to execute the decree. It appears, therefore, that it is only when the legal representative files a fresh application for execution, section 216 will stand attracted and not when he seeks to continue the execution petition initiated by the deceased decree holder.

(2.) . I am entirely in agreement with the view expressed by ramanujam J. in the above quoted judgment. Hence, the order passed by the court below directing the petitioner to produce succession certificate as a condition precedent for proceeding further with the execution is hereby set aside and the revision is allowed. The Court below is directed to proceed with the execution without insisting on the production of succession certificate as a condition precedent. No costs.