RAGHUBIR NARAIN SINGH Vs. RAJ RAJESHWARI PRASAD SINGH

JUDGEMENT

(1.) These two appeals by the son of the decree-holder arise out of the same judgment. They have been heard together and this judgment will govern them both. The material facts are these:

(2.) Rai Bahadur Dalip Narain Singh obtained a 6nal mortgage decree against Chaudhary Raj Rajeshwar Prasad Singh and several other persons on the 27th o September 1950. On the 6th January 1951, the said Rai Bahadur Dalip Narain Singh died. On the 3rd August 1951, his son, the present appellant, applied for the execution of the decree in mortgage Execution Case No. 36 of 1951, in the Court of the Subordinate Judge, Begusarai. One of the judgment-debtors, namely, Chaudhary Lala Prasad Singh, objected to the execution under Section 47 of the Code of Civil Procedure mainly on the grounds (1) that as Rai Bahadur Dalip Narain Singh had executed a Will in favour of Deoniti Prasad Singh, he alone was entitled to execute the decree and not the present appellant and (2) that, in the absence of a succession certificate, it was not open to the appellant to obtain execution of the decree passed in favour of his deceased father. A Miscellaneous Case No. 41 of 1951 was started thereon.

(3.) Rai Bahadur Dalip Narain Singh also obtained a money decree against the said Chaudhary Raj Rajeshwar Prasad Singh on the 27th March 1950. On the 31st July 1950, he started execution of his decree in Money Execution Case No. 34 of 1950 in the Court of the Subordinate Judge, Begusarai. During the pendency of this case he died and his son, the present appellant, was substituted in his place by an order dated the 23rd of February 1951. After substitution, he continued the execution case. The judgment-debtor filed objection to the execution under Section 47 of the Code of Civil Procedure which was numbered as Miscellaneous Case No. 40 of 1951 of the said Court. Here also the judgment-debtor took the same two objections, namely, (1) that as Rai Bahadur Dalip Narain Singh had executed a Will in favour of Deoniti Prasad Singh, he was alone entitled to execute the decree and not the appellant, and (2) that it was essential for the appellant to obtain a succession certificate before he could execute the decree. In both the cases the learned Subordinate Judge overruled the first objection but upheld the second one and allowed the miscellaneous cases holding that the above execution cases could not proceed until the appellant produced a succession certificate. Being thus aggrieved, the only judgment-debtor in execution Case No. 34 of 1950, has filed Miscellaneous Appeal No. 371 of 1952 against the order passed in Miscellaneous Case No. 40 of 1951 and the contesting judgment-debtor in Execution Case No. 36 of 1951 has filed Miscellaneous Appeal No. 372 of 1952 against the order passed in Miscellaneous Appeal No. 41 of 1951. There is no opposition on behalf of the respondents in both these appeals.