Final Order 1

Order Details: Other
Pdf Text: 1 Execu. Appn. 43/18
IN THE COURT OF BOMBAY CITY CIVIL COURT, GR. MUMBAI.
EXECUTION APPLICATION NO. 43 OF 2018
MHCC01002241
IN
S.C.SUIT NO. 695 OF 1998
MHCC010006251998
Dharmayya Arjun Bhoga ).....Plaintiff/Petitioner
(Now deceased and through his
legal heirs and representative
AND being the applicants and executors
as under)
1.Shakuntala Dharmayya Bhoga
and Ors. ).....Applicants/Executors
Versus
Hussainsab Kasimsab Shaikh ).......Defendant/
Adv. Mr.Sandip Ghogare for the plaintiff.
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.02)
DATE : 09/10/2018
ORDER
The applicants have filed this execution application for
execution of decree dated 17th October, 2014 passed in S.C.Suit No.
695/1998. The certified copy of the decree is annexed with this
application. It would be apposite at this stage to refer the order reads
as under:
-- 1 of 15 --
2 Execu. Appn. 43/18
(a) Suit of plaintiff is decreed with costs.
(b) The defendant is hereby directed to remove himself
along with his articles from the suit premises i.e. loft
and mezzanine floor of Gala site no.L16, Gandhi
Nagar,D.C.Marg, Mumbai, within one month from
today.
(c) The defendant is further directed to deliver the
vacant possession of Gala site no.L16, Gandhi Nagar,
D.C.Marg, Mumbai, in favour of plaintiff within one
month.
2. It is submitted that the applicant no.2 is the Constituted
Attorney of the all other applicants/ executors. It is also submitted that
by Power of Attorney dated 19/01/2018, the applicants being legal
heris and representatives of original deceased plaintiff/ Decree holder
has taken out this proceedings for execution of the decree.
3. On behalf of the decree holder, it is submitted that the
Judgment debtor( Original defendant) has preferred an appeal before
Hon'ble Bombay High Court vide first appeal no. 1296/2014 and the
same is dismissed on 17/2/2016. It is also submitted that the Judgment
debtor has taken out Civil application no. 3763/2016 for restoration,
which is also dismissed on 10/1/2017. Copy of the order passed by the
Hon'ble High Court is also placed on record. From the death certificate
placed on record, it shows that the original plaintiff (Original Decree
holder) has expired on 23/10/2016 and in the Execution application
supported by an affidavit, in para no. 5 , it is mentioned that following
are the legal heirs / representatives of the deceased plaintiff Dharmayya
-- 2 of 15 --
3 Execu. Appn. 43/18
Arjun Bhoga :
1. Shakuntala Dharmayya Bhoga
2. Prabhakar Dharmayya Bhoga
3. Smt. Jayashri Gutudatt Yemul
4. Smt. Rajashri Anand Chiluka
5. Vanishri Prashant Shirsulla
6. Anushri Ganesh Talla
7. Srinivas Dharmayya Bhoga
4. It is further submitted that the original defendant
Hussainsab Kasimsab Shaikh is in possession of the suit premises and
has not vacated suit premises in spite of the decree. Hence, this
execution application is preferred.
5. While opposing the execution application, the Judgment
debtor(Original defendant) has filed the reply on affidavit. It is
submitted that the fact of death of original decree holder is not
intimated to the Judgment debtor. It is further submitted that the
Judgment debtor has filed the appeal and unless the decision in
appeal / application is decided by the Hon'ble High Court, the execution
be stayed.
6. The learned advocate for Judgment debtor has filed the
additional affidavit in reply. As per Exhibit4, it is submitted that the
decree is not amended by bringing the legal heirs on record and
objection is also raised that the applicants are not the decree holder. It
is also submitted that the applicants are not the legal heirs or legal
representatives of deceased decree holder as they have not produced
the succession certificate issued from the competent Court of law. It is
-- 3 of 15 --
4 Execu. Appn. 43/18
therefore submitted that the execution application be rejected.
7. I have heard learned advocate Mr. Sandip Ghogare for the
decree holder and learned advocates Mr. Pal with Mr. Upadhayay for
judgment debtor.
8. The first ground which is argued on behalf of the Judgment
debtor is that the applicants cannot take out this execution proceedings
without a succession certificate as contemplated under section 214 of
the the Indian Succession Act. While arguing on this point, learned
advocate for the Judgment debtor has placed reliance on the case :
I. Basha Khan Vs. K. Selvaraj and others reported in AIR 1999
MADRAS 374; wherein it was held that Order 21 Rule 16
Execution of decree Death of decreeholder Execution cannot be
initiated by his legal representative without production of succession
certificate as contemplated under S. 214(1)(b) of Succession Act.
2. The only point that arises in this Revision for consideration
is whether the wife of the deceased decreeholder can proceed
with the Execution petition filed by her power of attorney,
without a succession certificate as contemplated under Section
214 of the said Act.
Only if they want to file a fresh application they have to
comply with the requirement of Section 214 of the said Act,
which reads as follows:
“Proof of representative tilte a condition precedent to
recovery through the Courts of debts from debtors of deceased
person:
(2) Where the legal representatives themselves are seeking to
-- 4 of 15 --
5 Execu. Appn. 43/18
execute the decree obtained by the deceased decreeholder, then it
is mandatory under S.214 (1)(b) of the Act to obtain a succession
certificate and then to have the decree executed”
Section 214 specifically bars the Court from proceeding with the
execution on an application of a person claiming to be entitled to
execute the decree..........
It appears , therefore, that it is only when the legal representative
files a fresh application for execution, Section 214 will stand
attracted and not when he seeks to continue the execution petition
initiated by the deceased decreeholder.
8. In view of the settled position of law, I find that no execution
petition shall be proceeded (initiated with) without the production
of succession certificate as contemplated under Section 214(1) (b)
of the Indian Succession Act. Hence the order of the Court below
cannot be interfered with, and this Revision is dismissed
accordingly. No costs.
9. He has also placed reliance on the case of Ramanatha
Reddy Vs. K.V.Kuppuswami Mudaliar and Others ; reported in 1971
Madras 419 (V 58 C 88);wherein it was held “ Succession Act (1925),
S.214 (1) (b) A legal representative need not produce a succession
certificate to continue the execution initiated by the deceased decree
holder. Application for substitution cannot be treated as a fresh
application for execution so as to attract Section 214.
It is further held that:
The only point that arises in this appeal is as to whether the legal
representatives of the deceased decreeholder can continue the
Execution petition filed by him without a succession certificate.
-- 5 of 15 --
6 Execu. Appn. 43/18
During the pendency of the said E.P. the saie Natesa Mudaliar died
and his widow, sons and daughters filed E.A. 364 of 1969 for
impleading themselves as his legal representatives and to continue
the E.P. further. The appellantjudgment debtor raised the objection
that the legal representatives cannot be allowed to continue the E.P.
without production of a succession certificate. This objection was
overruled by the executing Court and the respondents herein were
brought on record as the legal representatives of the deceased
decreeholder and the execution was allowed to proceed. The matter
was taken in appeal to the District Court.
2. The learned counsel for the appellants contends that a
succession certificate is necessary under S.214 (1) (b) of the Indian
Succession Act and that the view of the courts below holding that no
succession certificate is required for continuance of the E.P.is
erroneous. According to the learned counsel Order 22, Rule 12,
Civil P.C. will not apply to execution proceedings and it is only rule
16 of Order 21 and Section 146 that can be invoked in relation to
execution proceedings , and having regard to the wording of Rule 16
of Order 21 when a legal representative seeks to continue the E.P.,
he in effect seeks to substitute himself for the deceased decreeholder
which amounts to the filing of fresh execution petition by the legal
representative. By such a contention the learned counsel for the
appellant seeks to get over a series of decisions holding the view that
if the legal representatives seek to continue the E.P. filed by the
deceased decreeholder no succession certificate is necessary under
Section 214 (1( (b) of the Indian Succession Act.
7. An application filed by the legal representative to bring
himself on record should be treated as an application for
-- 6 of 15 --
7 Execu. Appn. 43/18
substitution or for fresh execution and if so treated it will attract
the provisions of Section 214. But that in my view, does not make
much difference in the interpretation of the scope of Section 214.
Section 214 specifically bars the court from proceeding with the
execution on an application of a person claiming to be entitled to
execute the decree. That does not contemplate the continuance of
an existing execution application(1) (b) of Section 214 it has to be
taken that the bar is only against institution of execution
proceedings by a person claiming on succession and does not bar the
continuance of the proceeding already initiated by the deceased. It
is well established that in view of O. 22 R. 12 execution proceedings
cannot abate on the death of the petitioner and the legal
representatives can therefore continue the proceedings without filing
a separate execution petition, by substituting themselves under
section 146 and Order 21, Rule 16 , Civil P.C. Once the legal
representative substitutes himself as the petitioner in the execution
petition already filed by the deceased decreeholder, the execution
has to proceed and the legal representative need not further prove
that he is a person entitled to execute the decree against the
particular debtor on succession.
It appears therefore that it is only when the legal
representative files a fresh application for execution, Section 214
will stand attracted and not when he seeks to continue the execution
petition initiated by the deceased decreeholder.
10. He has further placed reliance on the case of Akula
Rangappa (died by L.Rs.) Akula Satyamaiah and others Vs. Narayan
Swamy ; reported in AIR 1988 ANDHRA PRADESH 314 wherein it
-- 7 of 15 --
8 Execu. Appn. 43/18
was held that “ Where Legal heirs entitled to come on record without
obtaining succession certificate – Where L.Rs. seeking
execution on basis of decree obtained by deceased D.H. It is
mandatory to obtain succession certificate.
Where a decreeholder himself filed an execution
application and he dies before executing the decree and
recording the full satisfaction the legal representatives are
entitled to come on record without obtaining a succession
certificate as required under S.214(1)(b) of the Act.
Whether the legal representatives themselves are
seeking to execute the decree obtained by the deceased decree
holder then it is mandatory under S.214(1)(b) of the Act to
obtain a succession certificate and then to have the decree
executed. AIR 1968 Raj 273, Dissented from.
E.A No. 46/84 under O.22, R.3 C.P.C. to bring them
on record as legal representatives, so as to enable them to
proceed with the execution of the decree. The court below
dismissed the application holding that they did not obtain
succession certificate and under S.214(1)(b) of the Indian
Succession Act, 1925, for short the 'Act' placing reliance on a
decision reported in S. Rajyalakshmi V. S. Sitamahalakshmi,
AIR 1976 Andh Pra 361. Hence this revision.
2. Sri Suryanarayana, learned counsel for the respondent
while supporting the order passed by the court below
contends that the respondent is entitled to protect himself
from resisting the application in the absence of any succession
-- 8 of 15 --
9 Execu. Appn. 43/18
certificate granted by a competent court declaring the persons to be
entitled to the debt in execution. Such succession certificate not
having been filed the petitioners are not entitled to come on record.
He placed strong reliance on the decision reported in Ganeshmal V.
Anand Kanwar. AIR 1968 Raj 273. He seeks to edistinguish the
judgment of the Division Bench case reported in A. Mubakhan V.
Rajamma, AIR 1963 Andh Pra 69, contending that this court take
into account the language of S.214(1)(a) of the Act and the 'words
'so entitled to' and, therefore, all the other courts have fallen in line
with the Rajasthan case.
Section 214:
(1) No court shall
(a) x x x x x x x x x
(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.
(I) & (ii).........................
(iii) a succession certificate granted under part X and having the
debt specified therein, or...............
“ it is manifest from the language of S.214(1)(b) that it is
only an application for execution filed by a person that comes
within the prohibition enacted in S.214(1)(b). Could it be
predicated that a person, who seeks to come on record as the legal
representative of a decreeholder for the purpose of continuing that
application has applied for execution of the decree ? In our opinion,
the answer is in the negative.
Subsequently when the legal representatives of the deceased
-- 9 of 15 --
10 Execu. Appn. 43/18
decreeholder seeks to execute the decree without obtaining a
succession certificate under S. 214(1)(b) filed an execution petition
the question that arose was whether the execution petition can be
proceeded with, without obtaining a succession certificate. This
court in the decision reported in S. Rajyalakshmi V.
Sitamahalakshmi, (AIR 1979 Andh Pra 361) held that obtaining a
succession certificate is a mandatory. In the decision reported in P.
Baburao V. Tikkamchand, (1983) 1 APLJ I63 the question arose
was that the decreeholder filed an execution petition.
If a fresh application has to be filed then it is necessary that
the legal representatives should obtain the succession certificate as
enjoined under S.214(1)(b) of the Act. The golden rule that runs
through the decisions of this Court are thus:
(1) Where a decreeholder himself files an execution
application and he dies before executing the decree and recording
the full satisfaction the legal representatives are entitled to come on
record without obtaining a succession certificate as required under
S.214 (1)(b) of the Act.
(2) Where the legal representatives themselves are seeking to
execute the decree obtained by the deceased decreeholder, then it is
mandatory under S.214(1)(b) of the Act to obtain a succession
certificate and then to have the decree executed.
The need to obtain succession certificate arises only when
there is rival claims among the legal representatives and for the first
time, after the demise of the decreeholder, an independent
application for execution was laid. Moreover I am bound by the
ratio of the Division Bench Judges and I do not find any ground to
doubt the correctness of the Division Bench Judgment. Accordingly
-- 10 of 15 --
11 Execu. Appn. 43/18
the Civil Revision Petition is allowed and the L.R. petition is
ordered, but in the circumstances without costs.
11. He has further placed reliance on the case of Kazsturabai
w/o Vyankat Kumbhar & Ors. Vs. Pandit Sonusingh Patil & Ors.;
reported in 2014(4) ALL MR 807; wherein it was held that :
“ If is remain pending and if no time limit is prescribe to bring the
legal representatives of record in execution proceedings, it is open in
case of death of the decree holder, for his legal representative to
come on record at any time. The execution application cannot even
be dismissed for default behind the back of the decree holder's legal
representatives. In case of death of the judgment debtor, the decree
holder could file an application to bring the legal representatives of
the judgment debtor on record, at any time. Of course, in case of
death of judgment debtor, the Court can fix a reasonable time for
the said purpose and if the decree holder does not file an application
for the aforesaid purpose, the court can dismiss the execution
petition for default. But, in any event the execution petition cannot
be dismissed as abated.
12. I have carefully gone through the aforesaid rulings. The
ratio as it appears in the aforesaid rulings are that the legal heirs of the
deceased decree holder can be brought on record. So also the need to
obtain succession certificate arises only then there is rival claims
amongst legal representatives and for the first time after the demise of
the decree holder an application of execution was filed. In the case in
hand there is no dispute interse between legal heirs/ representative of
deceased decree holder which fact is clear from the affidavit in support
-- 11 of 15 --
12 Execu. Appn. 43/18
of the execution application and the Power of Attorney which is given
in favour of applicant no.2. There is no doubt about the fact that this
execution application is filed after the death of original decree holder.
However, this court cannot over look the fact that the judgment debtor/
original defendant had preferred an appeal. In the application the
present judgment debtor has brought all the applicants as the legal heirs
of deceased plaintiff /decree holder on record. In my considered
opinion once the original defendant has brought this applicant as legal
heirs of original plaintiff on record, he cannot then again challenge the
said fact or cannot take contrary stand that the applicants are not the
legal heirs. In my opinion, once the name of legal heirs are brought on
record in appeal then the enormous on every stage of the suit, and its
result, will be applicable to legal heirs. Therefore this mere formality to
bring on record. The applicants are already brought on record as legal
heirs.
13. More so, in the case in hand, the hon'ble Bombay High
Court while deciding application no.2813/18 in the first appeal no.
1296/14 by its order dated 30th August, 2018 observed in para no. 5
and 6 as under:
5) It is also urged that the only intention of the applicant behind
filing this application is to somehow or other to prolong the
execution of the decree, which is passed in the year 2014 and that
too in a suit filed in the year 1998. Hence, according to learned
counsel for the Respondents, no case is made out for restoration of
the appeal.
6) In my considered opinion, it is true that no sufficient reason
or cause is made out as earlier also the appeal is dismissed and the
application for restoration is also dismissed. Considering that the
-- 12 of 15 --
13 Execu. Appn. 43/18
suit is of the year 1998 and throughout the proceeding, the
appellant has remained negligent and callous and then he has not
taken a note to file application for bringing on record the legal heirs
of the sole respondents and no sufficient explanation is given for
condonation of delay or for restoration of the earlier application or
for restoration of the appeal.
14. It is necessary to mention here that in the application and
the first appeal, these applicants were already brought on record as
the respondents and that too by the the present judgment debtor.
Moreso, the learned advocate for the decree holder has also filed typed
copy of order in Spl. Leave to appeal no. 24878/2018 wherein the
Hon'ble Apex Court has dismissed this Spl. Leave petition (dated
13/9/2018). In the Spl. Leave petition also these applicants were the
respondents. Under these circumstances, at this stage , the ruling cited
supra by the Judgment debtor is not applicable, as the present
applicants were already brought on record in first appeal as the legal
representatives of deceased decree holder (original plaintiff )
Dharmayya Arjun Bhoga. When the Judgment debtor himself has
brought the legal representatives on record, he is estoppel from taking
objection in this execution application. Therefore also the ruling cited
supra is not applicable in the present case. Second objection as raised,
is that suit property is not in existence. In my opinion the applicant has
filed on affidavit that the suit property is in existence and the judgment
debtor is in possession of the same. Thus, this contention appears to be
made to delay the proceeding. Therefore, the said decree is executable
decree. Another objection raised is that, suit property is declared slum,
I do not find any merits in such submission, as this Court being
-- 13 of 15 --
14 Execu. Appn. 43/18
executing court cannot go behind the decree. The decree is very clear
which speaks of suit premises i.e. block on mezzanine floor , D.C. Marg,
Mumbai. Judgment debtor has failed to give vacant possession of the
same and therefore, under the given circumstances the decree needs to
be executed. Hence, I pass the following order.
ORDER
1. Execution application no.43/18 is allowed and made
absolute in terms of prayer clause (J ).
2. Issue writ of possession under order XXI rule 35 of the Civil
Procedure Code, thereby the Sheriff of Bombay to deliver
the applicants who are the legal representatives of
deceased decree holder the vacant possession of suit
premises i.e.Gala Site No. L16, Gandhi Nagar, D.C.Marg,
Mumbai.
3. It is further ordered that in case if Judgment debtor fails to
handover the peaceful and vacant possession of the suit
premises to the applicants, the Sheriff of Mumbai to give
forcible possession of the said suit premises to the
applicants by breaking open the lock and bolt found if any
and by providing police aid from the concerned police
station.
4. Registrar Civil to do the needful in this regard.
5. Execution application is disposed of accordingly.
Date:09/10/2018 (Kishore M. Jaiswal)
Dictated on :09/10/2018. Addl.Sessions Judge
Transcribed on :11/10/2018 City Civil & Sessions Court,
Signed on: Greater Mumbai
-- 14 of 15 --
15 Execu. Appn. 43/18
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 12.10.2018 NAME OF STENOGRAPHER
Mrs. V.V.Mhatre
TIME:5.35p.m.
Name of the Judge ( With Court
room no.) Shri Kishore M. Jaiswal
(Court Room No.02)
Date of Pronouncement of
JUDGEMENT/ORDER
09.10.2018
JUDGMENT/ORDER signed by
P.O. on
11.10.2018
JUDGEMENT/ORDER uploaded on 12.10.2018
-- 15 of 15 --