SHRINATH KHANDELWAL Vs. BISHWANATH PRASAD

JUDGEMENT

(1.) THE question of law which arises for decision in this appeal is whether the legal heir of a decree-holder who filed the execution applica tion can on the latter's death continue those proceedings after being substituted or is it essential for him to obtain a suc cession certificate. The answer to this question would depend on the interpre tation of Section 214 (1) (b) of the Indian Succession Act.

(2.) ONE Narain Das obtained a decree (No. 648 of 1964) against Vishwa-nath Prasad respondent on the basis of a pronote. On 8-8-1961 the decree-holder himself put the decree in execu tion. He. however, died on 18-11-1961. On 31-1-1962 the present appellant name ly Sri Nath Khandelwal applied that his name be substituted in place of the decree-holder and the execution be con tinued as he was the legal representative and legatee of the deceased by virtue of a will dated 6-5-1959 executed by the deceased. The judgment-debtor did not file any objection and, therefore, the ap pellant was substituted in place of the deceased decree-holder. Thereafter on 10-5-1962 the judgment-debtor, however, filed an objection under Section 47 of the Code of Civil Procedure stating that Sri Nath Khandelwal was not the successor of Narain Das deceased decree-holder and that the earlier order substituting him was invalid, and that in any case the ex ecution could not be proceeded with without succession certificate or probate being filed by Sri Nath Khandelwal. It appears that on 6-11-1962 Baij Nath Prasad claiming to be one of the heirs of the deceased decree-holder also filed objections wherein it was alleged that Baij Nath, Sri Nath Khandelwal, Parashotam Das. Ram Nath and Jagan-nath (nephews of the deceased decree-holder) were the heirs of the deceased and also legatees by virtue of the afore said will and hence they were entitled to be substituted as heirs. Evidence was recorded. A certified copy of the will dated 6-5-1959 was filed. Sri B. N. Seth, Advocate an attesting witness of the will was examined and he proved the will. By the order dated 27-11-1962 objections were dismissed but the appellant Sri Nath Khandelwal was required to file a suc cession certificate or probate of the will and it was ordered that the execution court would not proceed until the pro bate or succession certificate was filed. The present appellant filed an appeal against this order and contended that the impugned order was erroneous in law in asmuch as it directed him to obtain a succession certificate as a condition pre cedent to the continuance of the execu tion proceedings. The lower appellate court dismissed the appeal and affirmed the order of the executing court. In these circumstances the appellant has filed the present appeal in this Court.

(3.) IF the above authorities are analysed they disclose two main reasons for holding that on the death of the de cree-holder his legal representative cannot continue the execution proceedings by mere substitution of his name without ob taining a succession certificate. The first ground mentioned is that the fundamental object of making provision for the produc tion of a certificate of succession in Section 214 is to protect the interests of a debtor making payment to persons claiming to be entitled to the effects of the decree-holder. In case the production of succes sion certificate is not insisted on, the judg ment-debtor can always apprehend a dan ger of being forced to make payment twice or even more to other claimants of the de cree-holder. The ratio of the decisions is that it is for safeguarding the interest of the judgment-debtor that the provision is made that the legal representative of the deceased decree-holder should not be al lowed to execute a decree till he produces a certificate of succession. This argument does not appeal to me. In my opinion the apprehensions of the judgment-debtor on this score are somewhat illusory. Normally in all cases howsoever high the stakes may be, if the original party who institut ed or contested the proceedings dies the question of persons competent to continue those proceedings on the same footing is always settled by an enquiry in the nature of proceedings under Order 22 of the Code of Civil Procedure. I am unable to ap preciate as to how the present case stands in any manner on a different footing from that of other cases. Once the matter of substitution of the legal heirs or represen tatives of the deceased decree-holder is de cided after full contest and recording of evidence, the rights of the contestants are fully protected and there are no chances of a miscarriage of justice. Moreover, this argument loses sight of the proposition of law that once a decree is satisfied in favour of the applicant in execution and the exe cution is struck off, any other person com ing forward and claiming a right in res pect of the same decree cannot revive the execution to the detriment of the judg ment-debtor. So far as the judgment-deb tor is concerned, his liability is fully dis charged once the decree is satisfied and the execution is struck off. The notewor thy feature in this connection, so far as the present case is concerned, is that a certified copy of the will was filed and one of the attesting witnesses namely Sri B. N. Seth, District Government Counsel, Mirzapur was examined to prove the will. I have already referred to the objections dated 6-11-1962 by Sri Baij Nath Prasad for himself and the other beneficiaries of the will who were the brother and nephews of the decree-holder. Thus, the only sons who could possibly set up a riv claim to being the heirs or legal re sentatives of the deceased had all joined the contest for substitution and claims having been rejected by allov the appellant to be substituted, no dang lurked that the judgment-debtor would confronted in future with other person claiming to be the legal representatives the deceased. It is imperative that i| cases like these the substitution proceedings must be conducted with meticulous carol and abundant caution as was done by the j executing court in the instant case.