T RAMA SESHAGIRI RAO Vs. N KAMALAKUMARI

JUDGEMENT

(1.) Tadimalla Rattamma, obtained a decree against the petitioners for maintenance with a charge over their immovable properties for realisation of the amount decreed. She died after obtaining the decree. Before her death, she executed a will on 12th Sept., 1974 bequeathing the maintenance decree in favour of her daughter, Nidamarthi Kamala Kumari, the respondent. The respondent filed E. P. No. 55/1975 in the Court of the Subordinate Judge, Eluru, for execution of the decree. The petitioners--judgment --debtors took a preliminary objection that the execution petition was not maintainable without producing the succession certificate under S. 214 (1) (b) of the Indian Succession Act , 1925. The learned Subordinate Judge held that the charge was in the nature of a simple mortgage and no succession certificate was necessary, for proceeding against the property in execution. In this connection he relied upon Ramaswami V. Venkanna, AIR 1963 Andh Pra 135 and Ruprao V. Ram Rao, AIR 1952 Nag 88. He also observed that the decree included costs of the suit and no succession certificate was necessary for execution of a decree for costs. He relied upon S. Rajyalakshmi V. Smt. S. Sithamahalakshmi, 1976 ALT 300: (AIR 1976 Andh Pra 361). In the result, he overruled the preliminary objection raised by the petitioners and held that the petition was maintainable without producing the succession certificate.

(2.) In this revision it is submitted by learned counsel for the petitioner that charge created by a decree is not a charge within the meaning of S. 100 of the Transfer of Property Act and, therefore, it cannot be executed as if it is a mortgages decree. In this connection strong reliance was placed on the Full Bench Judgment of this Court in Naganna + V. J. K. Rangarao, AIR 1959 Andh Pra 622. It was also submitted that a charge is different from a mortgage, and that the learned Judge erred in holding that the charge is in the nature of a simple mortgage and no succession certificate is necessary.

(3.) The question for my consideration is whether the respondent can execute the decree for maintenance with a charge, that was bequeathed to her by her mother under a will, without producing the succession certificate? Section 214 of the Indian Succession Act, to the extent it is relevant, reads as follows:---