High Court of KeralaSingle Judge2008-01-08Writ petition disposed with a direction to refe...

CHAMBALUR DESOM, KALOOR VADAKKUMURI VILLAGE, PALAYAMPARAMBU P.O., ANNAMANADA, THRISSUR v. STATE OF KERALA

Case / Petition Number:WP(C) No. 15695 of 2007 (R)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.R.RAMAN
V.K.MOHANAN
Judgment Date: 2008-01-08
Court Decision / Holding: The writ petition is disposed with a direction that the matter requires reconsideration. The learned judge holds that there is a need to re-examine the necessity of a succession certificate in cases where the decree holder dies after filing of the execution petition but before finalisation, and where the amount has been deposited prior to death. He proposes to refer the issue to a Division Bench for authoritative guidance and indicates that the matter will be placed before the Chief Justice for appropriate orders.
Final Disposition: Writ petition disposed with a direction to refer the question to a Division Bench for authoritative reconsideration on the necessity of a succession certificate in such execution situations; the matter is to be placed before the Chief Justice for appropriate orders.

Parties to the Case

Appellants / Petitioners

Chambalur Desom, Kaloor Vadakkumuri Village, Palayampparambu P.O., Annamanada, Thrissur; Joy Anthony, S/o LATE C.V.Antony, Chambalur Desom, Kaloor Vadakkumuri Village, Palayampparambu P.O., Annamanada, Thrissur; Sainchan Anthony; Shibu Anthony

Respondents

State of Kerala, represented by the Chief Secretary, Government Secretariat, P.W.D.(Roads), Central Circle, Aluva

Case Synopsis & Summary

The writ petition challenges an order of the Principal Sub Judge, Irinjalakuda in E.A. Nos. 353 and 354 of 2007 in E.P. 340/2003 in O.S. 55/1994, which directed the petitioners to produce a succession certificate to continue the execution proceedings after the death of the decree holder. The decree holder had obtained a government decree for realization, and the amount had reportedly been deposited by the judgment debtor prior to the death. The executing court relied on Ramakrishnan Nair v. Easwari Amma (1979 KLT 401) and M.C. Sreedharan v. Patteeri Kumaran (AIR 1981 Kerala 51) to hold that a succession certificate is necessary to proceed with execution by the legal representatives. The petitioners contend that in a pending execution and where payment has already been deposited, a succession certificate is not mandatory. The learned judge, M.N. Krishnan, J., surveys a range of authorities from different High Courts, noting divergent views on Section 214 of the Indian Succession Act. He acknowledges that several decisions support non-necessity of the certificate, while others uphold it. Given the conflicting views, he states that the matter requires reconsideration and proposes referring it to a Division Bench for authoritative resolution, indicating that the court will seek appropriate orders from the Chief Justice. The petition is thus adjourned to be placed before the Chief Justice for directions.

Provisions of Law Cited

Section 214 of the Indian Succession ActSection 214(1)(b) of the Indian Succession Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argue that a succession certificate is not required to continue execution in a pending proceeding, especially when the decree amount had already been deposited by the judgment debtor before the decree holder’s death. They contend that Section 214 is intended to protect the debtor’s interest and that enforcing a certificate in such circumstances would unjustly delay or defeat realisation. They rely on decisions that express flexibility on the necessity of a succession certificate when the proceedings are ongoing and the assets are already secured, urging reconsideration of the rigid position that a certificate must be produced in all such cases.

Contentions of Respondents

Respondents contend that the execution should comply with the requirement of a succession certificate under Section 214(1)(b) to ensure the rightful entitlement of the deceased creditor’s legal representatives. They emphasize that the legal representatives stand to inherit rights only after proper authentication of succession, and without a certificate the execution may be challenged or diverted. They rely on the court’s earlier adherence to Ramakrishnan Nair v. Easwari Amma and M.C. Sreedharan v. Patteeri Kumaran, which mandated a succession certificate for continuation of execution in the light of a death in the chain of title, arguing that this practice protects the debtor’s assets and preserves legitimate succession.”},

Cited Precedents (9)

Case Name	Citation	Treatment	Explanation
Ramakrishnan Nair v. Easwari Amma	(1979) KLT 401	Positive	Cited as the basis on which the executing court held that a succession certificate is necessary to continue with execution.
M.C. Sreedharan v. Patteeri Kumaran	(AIR 1981 Kerala 51)	Positive	Followed by this Court as supporting the requirement of a succession certificate in the execution proceeding.
Narayana Pillai v. Narayana Panicker	(1956) KLT 852	Mentioned Only	Cited as an earlier view followed by some courts but not directly adopted in the present decision.
Tejraj Rajmal v. Rampyari	AIR 1938 Nagpur 528	Mentioned Only	Referenced among various authorities showing historical views on succession certificates.
Akula Rangappa v. Narayana Swamy	(AIR 1988 AP 314)	Mentioned Only	Cited for contrasting views on when succession certificates are required.
M.S. Kaushik Transport Co. v. State of Gujarat	(AIR 1990 Gujarat 102)	Mentioned Only	Cited as another jurisdictional view on the necessity of certificates.
Khandelwal v. B. Prasad	(1972 Allahabad 321)	Mentioned Only	Cited to illustrate differing opinions in Allahabad H.C. on the subject.
Resilikutty v. State of Kerala	1988? (1998 (2) 912)	Distinguished	The court distinguished this land-acquisition reference decision from the present case on the question of whether a succession certificate is required.
Unknown case (1979 KLT 410)	1979 KLT 410	Mentioned Only	Cited in the context of distinguishing from Ramakrishnan Nair line of reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE P.R.RAMAN THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 WP(C).No. 15695 of 2007(R) -------------------------AGAINST THE ORDER DATED 22/02/2007 IN EP 340/03 IN OS.55/1994 of PRL.SUB COURT,IRINJALAKUDA - CHAMBALUR DESOM, KALOOR VADAKKUMURI VILLAGE, PALAYAMPARAMBU P.O., ANNAMANADA, THRISSUR. 2. JOY ANTHONY, S/O LATE C.V.ANTONY, CHAMBALUR DESOM, KALOOR VADAKKUMURI VILLAGE, PALAYAMPARAMBU P.O., ANNAMANADA, THRISSUR. - CHAMBALUR DESOM, KALOOR VADAKKUMURI VILLAGE, PALAYAMPARAMBU P.O., ANNAMANADA, THRISSUR. 4. SAINCHAN ANTHONY, S/O LATE C.V.ANTHONY, CHAMBALUR DESOM, KALOOR VADAKKUMURI VILLAGE, PALAYAMPARAMBU P.O., ANNAMANADA, THRISSUR. 5. SHIBU ANTHONY, S/O LATE C.V.ANTHONY, CHAMBALUR DESOM, KALOOR VADAKKUMURI VILLAGE, PALAYAMPARAMBU P.O., ANNAMANADA, THRISSUR. 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, - P.W.D.(ROADS), CENTRAL CIRCLE, ALUVA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX ## PETITIONERS' EXTS: |EXT.P1|PHOTOCOPY OF E.A.NO.353/2007 DATED 22/2/2007 FILED BY| |---|---| ||THE PETITIONERS BEFORE THE COURT BELOW IN E.P.340/03 IN| ||O.S.55/94.| |EXT.P2|PHOTOCOPY OF E.A.NO.354/2007 DATED 22/2/2007 FILED BY| ||THE PETITIONERS BEFORE THE COURT BELOW IN E.P.NO.340/03| ||IN O.S.NO.55/94.| |EXT.P3|PHOTOCOPY OF THE ORDER DATED 28/3/2007 PASSED BY THE| ||LEARNED SUB JUDGE IN EA.NO.353/2007; AND L;E.A.NO.354/07| ||IN E.P.340/2003 IN O.S.55/94.| ## M.N. KRISHNAN , J ========================== W.P.(C) NO. 15695 OF 2007 ========================== Dated this the 18th day of August, 2007. ## **ORDER** This writ petition is preferred against the order of the Principal Sub Judge, Irinjalakuda in E.A. Nos. 353 and 354 of 2007 in E.P. No. 340/2003. The decree holder had obtained a decree from the Government. For realisation of the amount an execution petition was filed. During the pendency of the execution petition, the decree holder died and his legal representatives moved the application for impleadment as E.A. No. 353/2007 and for amendment E.A. No. 354/2007. The relief sought for in the execution petition is to realise the amount due to the decree holder. The executing court relying upon the decision of this Court reported in **Ramakrishnan Nair v. Easwari Amma** (1979 KLT 401) held that the succession certificate is necessary to continue with the execution proceedings. The court below also noted that the same view has been followed by this Court in the decision reported in **M.C. Sreedharan v. Patteeri Kumaran** (AIR 1981 Kerala 51). So it W.P.(C) NO. 15965/2007 : 2 : was held that the proposed legal representatives are bound to produce the succession certificate. 2. The learned counsel for the writ petitioner would submit that it is not necessary in a pending execution proceedings especially when the decree amount has already been deposited by the judgment debtor prior to the death of the decree holder. It is submitted that the amount was reported to be deposited on 11.01.2007 and the decree holder passed away on 12.02.2007. 3. I had gone through the decision of this Court reported in **Ramakrishnan Nair v. Easwari Amma** (1979 KLT 401) which had followed the views taken by the Nagpur, Travancore Kochi and Rajastan High Courts i.e., Narayana Pillai v. Narayana Panicker (1956 KLT 852), (Tejraj Rajmal v. Rampyari) AIR 1938 Nagpur 528. In paragraph 13, this Court held that the common sense dictates that the purpose of Section 214 of the Indian Succession Act is to protect the interest of the debtor by ensuring that payment is made to the person who in law is entitled to the W.P.(C) NO. 15965/2007 : 3 : assets of the deceased creditor. It was further held that there is no difference in view that, if the decree holder dies before filing any execution petition or after the disposal of an execution petition filed by him, his legal representative has to produce succession certificate if he is to file an application for execution of the decree. 4. The learned counsel for the writ petitioner submits that the decision reported in **(Akula Rangappa v. Narayana Swamy)** AIR 1988 Andhra Pradesh 314 held that whether a decree holder himself filed an execution application and he dies before executing the decree and recording full satisfaction the legal representatives are entitled to come on record without obtaining a succession certificate as required under Section 214 (1)(b) of the Act. The learned counsel also had referred to the decision of the Gujarat High Court in ( **M.S. Kaushik Transport Co. v. State of Gujarat)** AIR 1990 Gujarat 102 which also held a similar view. The learned counsel then had drawn my attention to the decision to the **Alahabad High Court reported in S.** W.P.(C) NO. 15965/2007 : 4 : **Khandelwal v. B. Prasad** (1972 Alahabad 321) wherein the single judge took the view that the bar under Section 214(1)(b) does not apply to application of person seeking to continue the execution proceedings after the death of the original decree holder. This Court in the decision reported in **Resilikutty v. State of Kerala** (1998 (2) 912) held that succession certificate is not necessary to a case pertaining to a land acquisition reference and the court distinguished 1979 KLT 410 on the ground that whether the compensation under the land acquisition is a debt or not did not come up for consideration in the said case. In view of the various pronouncements which holds the view that the succession certificate is not necessary when the decree holder dies pending proceedings of an execution application I feel that the matter requires reconsideration and therefore I feel that the matter has to be referred to a division bench for considering the question whether succession certificate is necessary in a case where the decree holder dies after filing of the execution petition and on W.P.(C) NO. 15965/2007 : 5 : deposit of the amount by the judgment debtor prior to the death. The matter will be placed before the Honorable Chief Justice for appropriate orders. **M.N. KRISHNAN, JUDGE.** rv W.P.(C) NO. 15965/2007 : 6 :