RADHU PANKAJ DAS AND ORS. Vs. UPENDRANATH PANDA

JUDGEMENT

(1.) PETITIONERS are the heirs of late Samant Radha prasanna Das in whose name the decree stands. The judgment -debtor raised an objection under Section 47, Code of Civil Procedure that the execution case was not maintainable for want of a succession certificate. This objection was upheld by the executing Court on 6 -2 -1962 and the execution case was struck off. In miscellaneous Appeal No. 35 of 1963, High Court restored the execution case on the following terms:

(2.) A preliminary objection has been raised by Mr. Roy that the impugned order is appealable and that no revision lies. He also argued that the Petitioners not having filed the succession certificate within the period granted by the High Court, the execution case was rightly dismissed.

(3.) THE order of the High Court in M.A. 35/63 was clear that the succession certificate be produced within three months from the date of the receipt of the records by the executing Court. "Date of receipt of the records" must always be construed to mean "the date of intimation of the receipt of the records in the lower Court to the concerned advocate or party". The date of receipt of the records cannot obviously be within the knowledge of the parties. They cannot also be expected to attend Court daily and make inquiries as to when the records were received. The natural construction to be placed on the High Court's order is that the succession certificate was to be filed within three months from the date of intimation of the receipt of the records. The learned executing Court also understood the High Court's order in that manner and accordingly had passed the order for informing the lawyers. The advocates for the parties were given intimation on 1 -7.1964. Petitioners were, therefore, entitled to file the succession certificate as of right on or before the 1st of October 1964. When they applied for time on 12 -8 -1904, the executing Court, was bound to grant time at least till 1 -10 -1964. The order refusing time on 1 -8 -1964 for filing succession certificate is directly contrary to the order of the High Court and without jurisdiction. It is unnecessary in this case to consider the further question whether the executing Court had powers to grant time after the expiry of the time granted but the High Court. On merits, therefore, the impugned order cannot be supported.