MINOR CHOCKALINGAM CHETTIAR ALIAS THIAGARAJAN CHETTIAR THROUGH MOTHER AND NEXT FRIEND KARUPPAYI ACHI ALIAS PARIPOORNAM ACHI Vs. STCHOCKALINGAM CHETTIAR ALIAS NASAPPA CHETTIAR

JUDGEMENT

(1.) This is an appeal against an order of the learned Subordinate Judge of Devakottai dismissing an application filed under Section 144 of the Civil P. C.. The petition was filed by a minor for whom his next friend asserted that he was the heir of the original party to the litigation who had an undoubted right to restitution under Section 144 of the Code of Civil Procedure. His relationship to that original party was questioned by the respondent who put him to strict proof of his title.

(2.) The learned Subordinate Judge has held that he has not sufficiently proved that he is the heir of the original party. It is difficult to understand how the learned Judge came to this conclusion. There is the definite evidence given on behalf of the petitioner establishing the fact that his father died before his uncle who was the party concerned and that his uncle had already lost his wife and had left no other heirs. No possible alternative heir to the Uncle was suggested by the respondent. In these circumstances we are satisfied that there is sufficient evidence proving the title of the petitioner to apply as heir of the original party.

(3.) The more important question however then arises as to whether this application will lie without a succession certificate. It is argued on behalf of the appellant that no such succession certificate is required for an application under Sec. 144 of the Civil P. C., because the claim which is made under that section cannot be considered a claim for a debt. We are unable to appreciate this argument and no authority has been cited in its support. It seems to us clear that an application on the part of the successful party in the appellate Court for restitution from the unsuccessful party if that is expressed in terms of rupees is for a debt. It was pointed out that a debt must be for a liquidated sum of money. But it is quite clear from a perusal of the contents of the application in this case that it was for a liquidated sum of money in every sense of that word that the appellant was applying. In view however of our decision with regard to the relationship of the appellant as the heir to the original party we do not consider that the order of the learned Subordinate Judge dismissing his application can be supported. We set aside that order and direct that the learned Subordinate Judge to take the application again on file and continue to keep it on file for a period of three months or such time as may appear reasonable to the learned Subordinate Judge, in order to enable the appellant to provide himself with the necessary succession certificate. The learned Subordinate Judge will then dispose of the application according to law. The costs will abide the event.