NANDLAL Vs. MAHAVIR KUMAR

JUDGEMENT

(1.) THIS is judgment-debtor's execution first appeal against the order of the Additional District Judge No. 1 Jaipur City, and it arises out of the following circumstances: A decree in a mortgage suit was awarded in Civil Suit No. 9 of 1967 in favour of the decree-holders. The decree-holder took out execution proceedings and the executing court ordered for the sale of the mortgaged property. The sale proclamation was settled, but before the property could actually be put to auction, one of the decree-holders, namely, Surendra Kumar Sethi died on 30th of October, 1973. An application was moved by the heirs of deceased Surendra Kumar Sethi to bring them on record. The judgment-debtor objected to this application, inter alia, on the ground that the execution cannot continue unless a succession certificate was obtained by the legal representatives of the deceased decree-holder under sec. 214 of the Indian Succession Act. The surviving decree-holders, however-applied on 5th of January, 1974, that they had a right to continue the execution proceedings even without bringing on record the legal representatives of the deceased decree-holder and the bar put by sec. 214 of the Indian Succession Act cannot deprive the surviving decree-holders of their right to continue the execution under O. 21, r. 15 of the Code of Civil Procedure. Tarachand Sethi, one of the decree-holders, filed an affidavit that the execution of the decree by the surviving decree-holders will be in the interest of all the decree-holders including the legal representatives of the deceased decree-holder. Shri K. C. Sanghi counsel for the legal representatives of Surendra Kumar Sethi decree-holder also filed an application on 7th of January, 1974 that the continuance of the execution proceedings is in the interest of the legal representatives of the deceased decree-holder Surendra Kumar Sethi and, therefore, a date may be fixed for the auction of the mortgaged property. It appears that the judgment-debtor vehemently opposed the continuance of the execution proceedings because of the provisions of sec. 214 of the Indian Succession Act. According to the judgment-debtor, that provision of the law created a bar for continuing the execution proceedings unless the legal heirs of the deceased decree-holder obtained a succession certificate.

(2.) THE learned Judge rejected this objection of the judgment-debtor and ordered that the property attached may be auctioned. It is against this judgment of the executing court that the present appeal has been filed by the judgment-debtor.

(3.) WE are fortified in our view by a decision of the Assam High Court in Ramnibas Agarwalla vs. Mt. Padumi Kalita (2), where the learned Judge has categorically laid down that the provisions of sec. 214 of the Indian Succession Act must be limited to the scope indicated by it. The learned Judge observed: 'it is clear that it is only where a decree stands solely in the name of a person who dies that the provision would seem to apply. The instant case is a special one for which specific provision is made in the Code of Civil Procedure application namely the case of a number of joint decreeholders. In the case of joint: decree-holders the Civil Procedure Code confers a right on them apart from the general law to execute the decree in their own right and for the benefit of themselves as well as the heirs of the deceased decreeholder, such a specific provision which applies to the facts of the case must be applied and sec. 214 of the Indian Succession Act has no to a case of joint decree-holders where there are other decree-holders surviving the deceased decree-holder. "