TADIMAILA RAMASESHAGIRI RAO Vs. NIDAMARTHI KAMAL KUMARI

JUDGEMENT

(1.) 1. Tadimalla Rattemma 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 bar death, she executed a will cm 12th September, 1974 baquetning the maintenance decree In favour of her daughter, Nidamarthi Kama la 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 wes not maintainable without producing the succession certificate under Section 214(1) (b) of the Indian SUCCESSION ACT, 1925, 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 vs. Venkamma (1) AIR 1963 AP 135 and Ruprao vs. Ram Rao (2) AIR 1952 Nagpur 88 He also observed that the decree included costs of the Suit and no succession certificate was necessary for execution of a decree fcr costs. He relied upon S. Asias. Y. Rajayalakshmi vs. Smt, S. Sithamahalakshmi Died Per C.R.S Sitapathi Rao (3) 1976 ALT 300. In the result, he over- ruled 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 the learned Counsel for the petitioner that & charge created by a decree is rot a charge within the meaning of section 100 of the Transfer of Property Act and, therefore, it cannot be executed as if It is a mortgage decree. In this connection strong reliance was placed on the Full Bench judgment of this Court in Naganna Natdu Vs. J. K. Ranga Rao (4) AIR 1959 A P 622. It was also submitted that a charge is different from a mortgage, and that the learned Judge erred in holding thai 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?