1. Two points have been urged by Mr. Sen, the learned counsel for the appellant in appeal No. M.A (S) 4 of 1964,—firstly that substitution of the heirs of one of the deceased decree-holders, who died during execution, is not possible under the law but a fresh application for execution should have been filed and secondly that without a succession certificate having been obtained under Section 214 of the Indian Succession Act, execution cannot proceed.
2. The facts of the case are that a joint decree was passed in favour of a number of decree-holders and a joint application for execution was filed into Court. During the pendency of this application one of the decree holders died. The other decree-holders on record applied to the executing Court for substituting the heirs of the deceased decree-holder and for proceeding with the execution. This was ordered negativing the above two contentions raised by the judgment-debtor before the executing Court. On appeal to the Subordinate Judge, it was held that the order of the executing Court was correct and no interference was called for.
3. In the Court below an adjustment of the decree was also applied for and apparently as no application was made within the time provided for under Order 21, Rule 2 of the CPC this point has not been seriously pressed before me.
4. At the outset an objection was raised by Mr. Medhi appearing for the respondents that there is no right of second appeal and that only a revision lay. On an examination of the question, it is clear that the order passed by the executing Court is one which fell within Section 47 of the CPC. This being so, the order amounts to a decree and a first appeal is provided for against a decree, and if section 100 applied, a second appeal would also lie. The question that arises is whether Section 102 of the CPC excludes the right of appeal. It is not disputed that the decree was in ejectment and for rent. Obviously this is not a suit of small cause nature and hence S. 102 would not be in the way of a second appeal in the instant case. I am, therefore, clearly of opinion that the second appeal now filed before me is competent under law.
5. Having thus cleared the preliminary objection, it would be necessary to consider the two points on which reliance has been placed by Mr. Sen. Regarding the substitution of the heirs of a deceased decree-holder, the procedure is clearly laid down in Order 21. Rule 15 of the CPC which is as follows: (Rule reproduced.)
6. It is clear from the above provision that where a decree is passed jointly in favour of a number of persons and one of them dies, two courses are open to the surviving decree-holders—firstly to proceed with the execution in their own names on behalf of themselves as well as the surviving heirs of the deceased decree-holder, in which event the Court may make appropriate order under sub-rule (2) of Rule 15 of Order 21, quoted above, or apply for substituting the heirs of the deceased decree-holder to be brought on record so that execution may proceed in the names of all of them and for the benefit of all. This is exactly what has been sought for in this case and I am clearly of opinion that no exception could be taken to this procedure.
7. The second objection to the orders of the Courts below is that having regard to Section 214 of the Indian Succession Act the Court below should not have ordered execution on behalf of the surviving heirs of the deceased decree-holder without a succession certificate having been produced. The relevant portion of Section 214 of the Indian Succession Act is as follows:
“214(1) No Court shall—
(a) 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, or
(b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt,
except on the production, by the person so claiming, of— xx xx xx
(iii) a succession certificate granted under Part X and having the debt specified therein, or
(iv) a certificate granted under the Succession Certificate Act, 1889 (VII of 1889), or xxx xxx xxx.”
8. Clause (2) of this Section excludes from the definition of the word ‘debt’ any debt involving rent, revenue or profits payable in respect of land used for agricultural purposes.
9. This provision in the Indian Succession Act must be limited to the scope indicated by it. It is clear that it is only where a decree stands solely in the name of a person who dies that the provision would seem to apply. The instant case is a special one for which specific provision is made in the Code of Civil Procedure namely the case of a number of joint decree-holders. In the case of joint decree-holders the Code of Civil Procedure confers a right on them apart from the general law to execute the decree in their own right and for the benefit of themselves as well as the heirs of the deceased decree-holder, such a specific provision which applies to the facts of the case must be applied and Section 214 of the Indian Succession Act has no application to a case of joint decree-holders where there are other decree-holders surviving the deceased decree-holder. Hence there is no question of applying Section 214 of the Indian Succession Act to the instant case and no succession certificate is at all necessary.
10. Hence the judgments of the Courts below are correct and no exception could be taken to them. The appeal, therefore, fails and is accordingly dismissed with costs.
Civil Revision No. 63 of 1963.
11. In view of the fact that it has been held that a second appeal lies, no revision would lie and hence this revision petition is dismissed but there will lie no order as to costs.
CK/MBR/D.V.C
12. Appeal and petition dismissed.
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