KHADIM HUSAIN KHAN Vs. ABDUR RAHMAN KHAN

JUDGEMENT

(1.) This second execution of decree appeal raises two short but important points of law. One Nawab Sardar Ali Khan obtained a decree for the possession of a house known as Kothi, on 17-4-1939 against Nawab Abdul Eahman Khan. A sum of Rs. 467/4/3 was awarded as costs of the suit. An appeal was filed against this decree but it was dismissed on 30-1-1945. Sardar Ali Khan, however, died shortly thereafter on 13-3-1945. Two applications for execution were made, one on behalf of Waqar Ali Khan, son of Sardar Ali Khan, and another by Smt. Shahzada Begam, daughter of Sardar Ali Khan. Both of these applications were made in 1945, but they were dismissed it appears, for want of prosecution. On 27-1-1948 another application for execution was made by Shahzada Begam and she claimed possession of the house as also the amount of costs decreed in favour of her father. An objection was then filed by Abdul Rah-man Khan, judgment-debtor, on two grounds: It was contended that Shahzada Begam was not the sole heir of Sardar Ali Khan and as such was not entitled tp put the decree into execution and secondly that the decree could not be put into execution without first obtaining a succession certificate. The learned Civil Judge, Bahraich, upheld the objection of Abdul Rahman Khan and allowed the objections to this extent that Shahzada Begam could put the decree into execution only in respect of her own share in the property which was one-third and that too on the production of a succession certificate. An appeal was then filed by Abdul Rahman Khan and a cross-objection was also made by Shahzada Begam. On the date of the hearing of the appeal, Abdul Rahman Khan was absent and his appeal was dismissed. The cross-objection of Shahzada Begam was, how,ever, pressed, but that too was dismissed. She has now come up in second appeal. The first point which has been pressed on behalf of the appellant is that the finding of the Courts below that a succession certificate was necessary was not correct. Section 214, Indian Succession Act has been relied upon by the learned Counsel for the appellant in support of his contention that no succession certificate was necessary. The relevant portion of Section 214 is as follows:

(2.) It has been argued that the word "debt" mentioned in this section would not cover a decree for costs. A perusal of Section 214 (1) (a) shows that a succession certificate would be necessary before the passing of a decree against a debtor of a deceased person for the payment of a debt. This presupposes the existence of a debt before the suit is instituted and a succession certificate would be necessary if the suit is brought for the recovery of a debt existing on the date of the suit. Sub-section (b) of Section 214 indicates that a decree passed against a debtor could not be executed except on the production of a succession certificate. The word "such" is very significant and evidently refers to a debtor against whom a debt is due before the decree is passed. It would not, therefore, cover a decree for costs which is not passed on the basis of any pre-existing debt, but is passed for the recovery of costs incurred during the pendency of the suit. No authority even bordering on the question involved has been produced by the learned Counsel for either party and it appears that this question never arose before, in any reported cases. In 'Saheb Bam v. Mst. Govindl', 1921 All 155 (AIR V 8) (A); Shadi Jan v. Waris Ali, 1921 All 173 (2) (AIR V B) (B), the question which was before the Court for consideration was slightly different and no assistance can, therefore, be derived from any of these two reported cases for the proposition canvassed in this case. A plain reading, therefore, of Section 214 (3.) (a) and (b) clearly shows that the intention of the legislature was that a succession certificate was necessary only if a decree had been obtained on the basis of a pre-existing debt. The word "debt" has also not been precisely defined in the Act, although Section 214 (2) shows that certain kinds of dues would be included in the word "debt" but it would not make any difference even if a wide interpretation is given to the word "debt". It would thus appear that the view taken by the Courts below on this point was not correct and the contention of the learned Counsel for the appellant shouldi prevail.

(3.) The other point which arises for consideration is if Smt. Shahzada Begam alone was entitled to take out execution for possession and for recovery of the amount of costs. It is not disputed that Waqar AH Khan and Shahzada Begam were the only two heirs of Sardar Ali Khan. Order 21, R, 15, Civil P. C., enables one of several joint decree-holders to take out execution on behalf of, and for the benefit of the other joint decree-holders. It has been argued on behalf of the respondent that Order 21, Rule 15 applies only to decree-holders in whose favour a decree had been passed and would not cover legal representatives of a deceased decree-holder. Order 21, Rule 16, Civil P. C., however, shows that if the interest of one of several joint decree-holders is transferred by assignment, or by operation of law, the transferee may apply for execution of the decree. This provision, therefore, gives some indication of the intention of the legislature. If a diecree-holder dies leaving a number of heirs they will evidently become joint-decree-holders after the death of the person in whose favour the decree was passed, and there appears to me to be no reason why one of these persons should not be entitled to execute the decree outstanding in favour of all the heirs of the deceased decree-holder. The appellant was, therefore, entitled to execute the decree "for the benefit of the two joint decree-holders. This point, however, is not very material for the decision of this appeal inasmuch as Waqar Ali Khan himself made an application before the Court below that he had no objection to Shahzada Begam executing the decree.