GOKAL CHAND Vs. SHANTI DEVI

JUDGEMENT

(1.) DEFENDANT No.1 is in appeal aggrieved against the judgment and decree passed by the learned Courts below arising out of suit for possession by way of specific performance of contract of mortgatge dated 13.03.2000 whereby decree for recovery of earnest money of Rs.1,06,500/- along proportionate costs and interest @ 12% per annum from the date of execution of agreement Exhibit P-3 till the date of passing of the decree and @ 6% per annum from the date of passing of the decree till the recovery of the decretal amount, was granted.

(2.) THE defendant-appellant as owner of land measuring 24 Kanals purportedly entered into an agreement to mortgage with Girdhari Lal, predecessor-in-interest of the plaintiff, for a total consideration of Rs.1,10,000/-. A sum of Rs.1,06,500/- was received as earnest money by defendant No.1 from Girdhari Lal in the presence of the marginal witnesses and the balance was to be received at the time of registration of mortgage deed before the Sub Registrar on 16.01.2001. Defendant No.1 signed the said documents in Hindi after the contents thereof were read over and explained to him in presence of the scribe and the marginal witnesses. The possession of land measuring 24 Kanals though mentioned in the agreement as delivered was actually not delivered. The plaintiffs claimed that Girdhari Lal till his death and thereafter the plaintiffs as his legal heirs were ready and willing to perform their part of the contract but defendant No.1 has failed to perform his part of the contract. Girdhari Lal died on 21.05.2001 and the present suit to seek specific performance of the agreement to mortgage was filed on 4.12.2001 after serving notice upon the defendants. Thus, decree aforesaid was granted.

(3.) THE only argument raised by learned counsel for the appellant in the appeal is that in terms of Section 214 of the Act, the suit is not maintainable as it prohibits grant of decree against a debtor of a deceased person for payment of his debt except on production of succession certificate in terms of Section 214(1)(iii) of the Act. Reliance was placed upon a Single Bench judgment of Orissa High Court reported as Basanta Kumar Das v. Smt. Lakshmi Priya Dasi and another, AIR 1988 Orissa 269. Learned counsel for the appellant has argued that since Girdhari Lal with whom the defendant-appellant purportedly entered into agreement died before the filing of the suit, therefore, in terms of Section 214 of the Act, succession certificate is required. Learned counsel for the appellant has further argued that it is not a case where the plaintiff has died after the filing of the suit as such situation is taken care of by the provisions of Order 22 Rule 3 of the Code of Civil Procedure but in case of a creditor having died prior to institution of lis, the suit is not maintainable without obtaining succession certificate.