ZAFER ALI Vs. KANTI PRAKASH

JUDGEMENT

(1.) The learned Judge of the lower appellate Court was misled by a slip made in a judgment of this Court. It is a Bench judgment, Kasumari Das V/s. Mahkhu . The report is quite correct. In dictating the judgment it was stated by the Court that the suit was one for redemption when it was really one for sale. I sent for the record as it seemed somewhat strange that a Bench of two Judges should have decided that a suit for redemption was a suit for the recovery of a debt. Mr. Kaul, on behalf of the respondent, argued that in any way there is the opinion of this Court that a succession certificate is necessary before a decree can be passed in a suit for redemption. When there is an obvious error made in dictating the judgment it cannot be said that such is the opinion of this Court In the mind of the learned Judge the thought of a mortgage debt was present and not redemption as would appear by his quoting the case of Fateh Chand V/s. Mohammad Baksh [1894] 16 All. 259, and saying that a succession certificate was necessary in respect of a mortgage debt.

(2.) Under Section 214, Succession Act No. 39 of 1925, no Court shall pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession, to be entitled to the effects of the deceased person or to any part thereof except on the production of a succession certificate. In the case of redemption the plaintiff is really the debtor and not the creditor and the defendant mortgagee is the creditor of a deceased person and not his debtor. Obviously therefore a plaintiff who sues, for redemption is trying to pay a debt and not to recover it and is not required to produce a succession certificate.

(3.) The suit was brought for redemption of a certain property on payment of Rs. 1,300. The subordinate Courts have held that the plaintiff was entitled to redeem only 1/12 of the property and the lower appellate Court further held that 1/12th of Rs. 1300 need be paid. No objections are made to these findings. I grant a decree for redemption of 1/12 of the property in suit on deposit in Court for payment to the defendant 112. of Rs. 1,300. The deposit shall be made within two months of today's date. A redemption decree shall be prepared. I am told that the money has already been deposited. The plaintiff shall receive proportionate costs throughout.