Sunday, 6 September 2015

Whether succession certificate is required for continuation of execution proceeding?

IN THE HIGH COURT OF ALLAHABAD
Civil Misc. Writ Petition No. 29146 of 1990
Decided On: 19.11.1990
Appellants: Chhotey Lal 
Vs.
Respondent: Dist. Judge, and others
Hon'ble Judges/Coram:
R.A. Sharma, J.

Civil - substitution of legal heirs - Order 21 Rule 24 and Order 22 Rules 3, 4, 8 and 12 of Code of Civil Procedure, 1908, Section 214 of Succession Act, 1925 and Article 137 of Limitation Act, 1963 - not applicable to proceedings in execution of a decree - even if heirs are not brought on record execution proceedings will not abate.
This Court in S. Khandelwal v. B. Prasad MANU/UP/0083/1972has laid down that provisions of S. 214 of the Succession Act do not apply to application of a person seeking to continue the execution proceedings after the death of decree-holder, inasmuch as the legal representatives merely request the execution court for continuation of the execution proceedings already initiated by the deceased decree-holder. This Court declared that S. 214 of the Succession Act prohibits the institution of execution proceedings by a person claiming as successor but it does not bar the continuance of the proceedings if the execution proceedings had already started by the deceased decree-holder. The first plea of the learned counsel for the petitioner as such, cannot be accepted.
Citation: AIR1991All214, 1991 AWC 247 All, 1991CivilCC822, 1991 RD123

1. Suit filed by Sri Sita Ram for recovery of rent having been decreed, he filed an application for execution to execute the decree. It appears that execution proceedings were stayed by this Court and during the period of stay Sita Ram died. After stay order was vacated respondents Nos. 3 to 5, the widow and two sons of Sita Ram moved an application before the execution court for bringing their names on record in place of Sita Ram so as to enable them to continue the execution proceedings. Petitioner, who was defendant in the suit and is judgment-debtor, filed objection against the aforesaid application of the heirs and legal representatives of Sita Ram. Objection having been rejected, petitioner filed a revision before the learned District Judge, which has also been dismissed by order dated 28-8-1990, It is against these orders of the execution court and the learned District Judge that this writ petition has been filed.
2. Learned counsel for the petitioner has challenged the impugned orders on the grounds that (i) execution proceedings cannot be continued by heirs and legal representatives of deceased decree-holder unless succession certificates Section 214 of the Succession Act has been obtained, and (ii) even if Rules 3, 4 and 8 of 0. 22 of the C.P.C. arc not applicable to the execution proceedings, application for substitution has to be made so as to bring on record the heirs and legal representatives of the deceased decree-holder and there being no other provision for making such an application except S. 151 of the C.P.C. this application has to be filed within three years as provided for by Art. 137 of the Limitation Act.
3. Order 22, R. 12 lays down that nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. Rules 3 and 4 of Order 22 provide for making of an application for substituting the heirs of plaintiff and defendant within the time provided by law, with the result that if such an application is not made, suit stands abated. When R. 12 lays down that nothing in Rules 3 and 4 will apply to execution proceedings, it means that even if heirs are not brought on record, execution proceedings will not abate. The legal representatives of the deceased decree-holder are not required to move substitution application and as held by a Division Bench of this Court in Manmohan Dayal v. Kailash Nath AIR 1957 AH 647 1957 All LJ 578 they are entitled to ask for continuation of execution proceedings without moving any fresh application for execution.
4. This Court in S. Khandelwal v. B. Prasad MANU/UP/0083/1972has laid down that provisions of S. 214 of the Succession Act do not apply to application of a person seeking to continue the execution proceedings after the death of decree-holder, inasmuch as the legal representatives merely request the execution court for continuation of the execution proceedings already initiated by the deceased decree-holder. This Court declared that S. 214 of the Succession Act prohibits the institution of execution proceedings by a person claiming as successor but it does not bar the continuance of the proceedings if the execution proceedings had already started by the deceased decree-holder. The first plea of the learned counsel for the petitioner as such, cannot be accepted.
5. Regarding the second plea about limitation, it may be mentioned that Rr. 3 and 4 of O. 22 of the C.P.C. lay down that application for substitution is to be made within the specified time and as these rules are not applicable to execution proceedings, in view of R. 12 of 0. 22, C.P.C. period of limitation for permission to continue the execution proceedings cannot be applied. Art. 137 of the Schedule of the Limitation Act prescribes period of limitation of three years for "Any other application for which no period of limitation is provided also where in this division." This Article cannot apply to each and every application even if no period of limitation is provided by the Limitation Act for such an application, when what is required to be done by the court is merely an act of ministerial character or when the court is enjoined by law do something on its own accord, this Article may not apply, even if party concerned makes an application and the court passes an order in connection therewith. This Court in Budh Singh v. Additional District Judge MANU/UP/0179/1986has laid down that, when MANU/UP/0179/1986
"the decree-holder dies it is open to the legal representatives claiming interest in the estate of the deceased or as being entitled to proceed with the decree, to come up just by way of information to the execution court and thereafter proceed with the execution. Since under the Code no application for substitution or otherwise is required to be made by such legal representatives, it cannot be claimed that the bar of Art. 137 of the Limitation Act is attracted. Art. 137 may be invoked where an application is required under law to be necessarily made in order to confer or create a right to proceed in a matter but where no such application is the requirement of law, the bar of limitation is inapplicable."
The second submission of the learned counsel for the petitioner also lacks force.
The writ petition is accordingly dismissed.
6. Petition dismissed.

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