S RAJYALAKSHMI Vs. S SITAMAHALAKSHMI

JUDGEMENT

(1.) This appeal is directed against the order passed by the Chief Judge, City Civil Court, Hyderabad dated 22nd day of April 1975, overruling the objections raised bye the judgment-debtor and directing the decree-holders to take further proceedings in the execution petition.

(2.) It was contended by the learned counsel for the appellant that without obtaining a succession certificate, the respondent could not proceed with the execution of the decree. To understand the above contention, it is necessary to state the brief facts which are as under :

(3.) The respondent filed O.S. No. 6/1973 before the Chief Judge, City Civil Court Hyderabad, for partition of the suit schedule properties. A preliminary decree was passed on 31-7-1973 and costs were awarded to the plaintiff against the lst defendant. On 5-3-1974 the sole plaintiff died and his legal representatives were brought on record on 2-9-1974. Thereafter, E.P No. 5/1975 was filed on 9-3-1975. The judgment-debtor filed a counter-affidavit in E.P. No. 5/75 stating therein that the decree-holder died in 1974 after passing of the preliminary decree. The legal representative, i.e. the present petitioner cannot execute the decree unless he obtains a probate or succession certificate from a competent Court. Therefore, the execution petition is not sustainable and is liable to be dismissed in limine. He also pleaded payment of some amounts with which we are not now concerned.