SHAIKH GOLAM KHALIK Vs. TASARDAK KHAN

JUDGEMENT

(1.) This is an appeal by the decree-holder against the decision of the learned District Judge of Midnapore, dated the 14th December 1916, affirming the decision of the Munsif of Contai. The appeal is preferred against an order passed in an execution case and the points raised are these: First of all, the question arose whether the present appellant was entitled to maintain the present application. The facts are these. The appellant is the son of the original decree- holder. He is not the only son or the only heir, but after the death of his father he made an application under the provisions of the Succession Certificate Act, to which he made the other heirs of his deceased father parties, as to the grant of a certificate in order to entitle him to obtain the particular decretal amount. He alleged in his application that he was the only person entitled to this judgment-debt. Section 4of the Succession Certificate Act provides that no Court shall pass a decree against a debtor of a deceased person for payment of his debt to a person claiming to be entitled to the effects of the deceased person or to any part thereof except on the production by the person so claiming, amongst other things, of a certificate granted under that Act. It is quite clear that the Act contemplates the production of a certificate granted to a person who claims to be entitled to a part of the effects of a deceased person. Section 6 deals with the mode of the application. Section 7 deals with the procedure on the application. The first sub-section speaks about the service of notices. The second sub- section provides that when the Court decides the right thereto, that is, to the certificate, to belong to the applicant, it shall make an order for the grant of the certificate to him, That is what happened in the present case. Sub-section (4) provides that where there are more applicants than one for a certificate and it appears to the Court that more than one of such applicants have a right to the certificate, the Court may grant a certificate to either or any of them. Then comes Section 16 which states the effect of the certificate, and that is that it is conclusive as against the person liable to pay the debt and that it shall notwithstanding any contravention of Section 1, Sub-section (4), or other defect, afford full indemnity to all such persons as regards all payments made or dealings had in good faith. In the present case, the learned District Judge, in my opinion, was clearly wrong on those provisions in holding that the judgment debtors were entitled to go behind the terms of the certificate. It seems to me that on that point the judgment of the learned Judge cannot be supported.

(2.) The second question raised is the question of limitation. It seems to me that the learned District Judge was clearly right in holding that the acceptance of the instalment after default must be taken to have waived the decree-holder s right to recover the whole amount due on the decree.

(3.) The last point that has been raised in this appeal is the third point that was raised before the Munsif, namely, that the respondents to this appeal alleged that they were not in possession of any of the assets or the estate of the deceased judgment-debtor and that the land that had been attached did not form part of her estate; and it was also alleged that the deceased judgment-debtor had died without leaving any property. That point has not been dealt with by the learned District Judge, although it was dealt with by the Munsif. The case must, therefore, go back to the learned District Judge for him to determine the last objection raised by the respondents to the present appeal. Costs will abide the result of the re-hearing by the learned District Judge. We assess the hearing fee in this Court at two gold mohurs. Syed Shamsul Huda, J.