PALANIYANDI PILLAI Vs. VEERAMMAL

JUDGEMENT

(1.) IF in the present case the suit had been merely for an order for sale of the mortgaged property we should, following Baid Nath Das V/s. Shamanand Das I.L.R. 22 Calc. 143 at. P. 146, Mahomed Yusuf V/s. Abdur Rahim Bepari I.L.R. 26 Cal. 839 and Nan Chand V/s. Yenawa I.L.R. 28 Bom. 630, hold that no succession certificate would be necessary as pointed out on behalf of the appellants in Ammanna V/s. Gurumurthi I.L.R. 16 Mad. 64 ; the inclination of the learned Judges who decided that case was in favour of the view that a decree for foreclosure need not be conditional upon the production of a certificate. Fateh Chand V/s. Muhammad Bakhsh I.L.R. 16 All. 959, which dissents from the above view, distinguishes the case in Ammanna v Gurumurthi I.L.R. 16 Mad. 64 on the ground that the relief prayed for in the latter was foreclosure. This distinction would seem to be open to doubt for reasons stated by Dr. Ghose at pages 87 and 88 of his work on the Law of Mortgage (3 edition). In our opinion the better conclusion is that, irrespective of the actual description of relief granted, a decree for the enforcement of a mortgagee's rights as against the mortgaged property is not a decree for a debt within the meaning of Section 4 of the Succession Certificate Act (VII of 1889). It would, however, be otherwise y with reference to a personal decree for the debt, and this is conceded in the Calcutta and Bombay cases cited. In the present case, a personal decree was prayed for and granted, and the requisition of a certificate as a condition precedent to such a decree is right. We are unable to accept the suggestion made on behalf of the appellants that the decree of the lower Appellate Court warrants the view that the certificate is made a condition even with reference to so much of it as relates to the mortgaged property. The second appeal is therefore dismissed. In the circumstances each party will bear and pay his own costs.