KALI RAM Vs. ISHWAR SINGH

JUDGEMENT

(1.) A money decree was passed against the petitioner and in favour of Jage Ram on December 4, 1972. He started execution proceedings respecting this decree. In the meanwhile an appeal was filed by the petitioner against that decree and in view of that appeal, the executing Court consigned the proceedings to the record with the observation that the decree-holder may get it restored after the decision of the appeal and the proceedings will be started from that stage. According to the averments of the learned counsel for the respondents, Jage Ram died in the first appellate Court and the present respondents were impleaded as his legal representatives in that appeal. After the dismissal of the appeal, the legal representatives filed the present application for restoration of the execution proceedings. The judgment-debtor opposed the application on the ground that the legal representatives have no right to execute the decree without securing succession certificate under Section 214 of the Indian Succession Act. The objection was over-ruled by the executing Court and its order was confirmed by the learned Additional District Judge, Sonepat, vide order dated January 19, 1978. Still dissatisfied, the judgment-debtor has come up in this revision petition.

(2.) The impugned order has been attacked by the learned counsel for the petitioner on the ground that the view taken by the two Courts below that it was not a case of fresh institution of execution proceedings but was a case of continuation of the proceedings already started by the petitioner is erroneous. I am, however, unable to agree with the learned counsel. It is apparent from the order of the executing Court referred to above that execution proceedings instituted by the judgment-debtor were not finally disposed of but were consigned to the record reserving the right to the decree-holder to get them restored after the decision of the appeal. In the eye of law, the execution proceedings instituted by the deceased were still pending and the legal representatives, therefore, had a right to continue them without securing any certificate under Section 214 of the Indian Succession Act.

(3.) The matter can be looked at from another angle also, that is, that the legal representatives in the present case had already become a party to the suit in which a decree was passed. On decision of the appeal, the decree of the trial Court merges in the decree of the lower Appellate Court and the legal representatives being a party to that decree, would be entitled even to institute fresh execution proceedings without securing succession certificate.