PAIVALIKE GRAMA PANCHAYATH v. RATNAVATHY SHETTY, SUJATHA, JAGADISHA, PUSHPA and C. RAMYA SHETTY

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 WP(C).NO. 1431 OF 2008(U) ------------------------- {E.P.NO.182/04 & E.P.NO.208/04 IN OS.258/2003 OF THE PRL.MUNSIFF, KASARAGOD} PETITIONER(S): PAIVALIKE GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, P.O. PAIVALIKE, KASARGODE-671121. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENT(S): ## 1. RATNAVATHY SHETTY, WIDOWN OF U.KRISHNA SHETTY, URMI HOUSE, PAIVALIKE VILLAGE, KASARGODE-671121. 2. SUJATHA, D/O.U.KRISHNA SHETTY, KALAI HOUSE, PAIVALIKE VILLAGE, KASARGODE-671121. 3. JAGADISHA, W/O. U.KRISHNA SHETTY, URMI HOUSE, PAIVALIKE VILLAGE, KASARGODE-671121. 4. PUSHPA, D/O. U.KRISHNA SHETTY, URMI HOUSE, PAIVALIKE VILLAGE, KASARGODE-671121. 5. C. RAMYA SHETTY, D/O. MAHABALA SHETTY, MELINAMANE, ENMAKAJE VILLAGE, KASARGODE-671121. ADV. SMT.T.D.RAJALAKSHMI FOR R1 TO 5 SRI.E.R.VENKATESWARAN FOR R1 TO 5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C).NO. 1431 OF 2008 :: 2 ::** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** EXT.P1: TRUE COPY OF THE ORDER IN EA NO.170/2007 IN EPNO.182/2004 IN OS NO.258/2003- MUNSIFF COURT, KASARAGODE. EXT.P2: TRUE COPY OF THE ORDER IN EA NO.209/2007 IN EP NO.182/2004 IN OS NO.258/203- MUNSIFF COURT, KASARAGODE. EXT.P3: TRUE COPY OF THE ORDER IN EA NO.172/2007 IN EP NO.208/2004 IN OS NO.258/203- MUNSIFF COURT, KASARAGODE. EXT.P4: TRUE COPY OF THE ORDER IN EA NO.211/2007 IN EP NO.208/2004 IN OS NO.258/203- MUNSIFF COURT, KASARAGODE. ## **RESPONDENTS' EXHIBITS: NIL** //true copy// P.S. To Judge SK/- ## **S.S.SATHEESACHANDRAN, J.** --------------------------------------------------- W.P.(C) No.1431 of 2008 --------------------------------------------------Dated this the 24[th] February, 2010. ## **JUDGMENT** Writ petition is filed with the following reliefs: - _**a) Call for the records of the case leading to Exts.P1 to P4 and set aside the same by the issue of an appropriate writ in the nature of certiorari or other appropriate writ, direction or order;**_ - _**b) Grant such other orders as may be deemed necessary in the facts and circumstances of this case and in the interests of justice;**_ 2. Petitioner is a local authority which has suffered a decree for damages and mandatory injunction passed in O.S.No.258/03 by the learned Principal Munsiff, Kasargode. Pending execution of the decree, the decree holder passed away. His legal heirs, who are the respondents herein moved an application for substitution. That application was objected to by the petitioners contending that all legal heirs have not been shown in their petition. In the light of the objection so ## **W.P.(C) No.1431 of 2008** ## **:: 2 ::** canvassed, another application was moved by the respondents to implead one more person for substitution in the place of the decree holder. That application was also objected to by the petitioner/judgment debtor. 3. Among other contentions production of a succession certificate as mandated under the Indian Succession Act was also canvassed to resist the execution of the decree. The decree holder had moved two petitions in respect of the very same decree whereunder decree for damages and mandatory injunction had been granted. In one execution petition, the decree of damages was claimed and the other related to the decree of mandatory injunction. Separate applications were filed in the lines indicated for substitution in both the execution petitions and they were objected to by the judgment debtor as indicated. 4. From the submissions made by the counsel, it appears, the two separate execution petitions from the very same decree had been presented by the decree holder in view ## **W.P.(C) No.1431 of 2008** ## **:: 3 ::** of the pendency of appeals and order passed thereof. In the second appeal, stay of operation of the decree of mandatory injunction was granted, but with respect to the decree of damages, it is submitted by the counsel, conditional stay alone was granted directing furnishing of security. Security furnished for stay of operation of the decree of damages is pending enquiry as the decree holder had disputed its sufficiency. That is stated as the reason why separate execution petitions had been filed separately in respect of the two reliefs of the decree. Whatever that be, the question emerging for consideration in the present writ petition relate to the allowing of the applications moved by the court below for substitution of the legal heirs in the place of the decree holder negativing the objections raised by the petitioner. 5. Learned counsel for the petitioner contended that without producing succession certificate the respondents should not have been allowed to be substituted in the petition and the mandate of Section 214 of the Indian Succession Act ## **W.P.(C) No.1431 of 2008** ## **:: 4 ::** has to be complied in letter and spirit. Since the court below has allowed substitution of the respondents in the execution proceedings and thereby permitting them to proceed with execution, it has violated Section 214 of the Succession Act is the submission of the learned counsel. This court in **Elsy v. State of Kerala {2008(1) KLT 904}** considering the scope and ambit of Section 214 with respect to the substitution of the legal heirs of a deceased decree holder in a pending execution proceedings has held that the production of a certificate is not a condition precedent for entertaining an application for substitution. The court, however, has to grant time for compliance with the provisions of that statute. In the above decision, it has been held thus: **"We have considered the divergent views expressed by the Courts while interpreting the provisions contained in S.214(1)(b) of the Indian Succession mAct. To us it appears the view taken by the Travancore-Cochin High Court and by the learned Single judge of this Court in Ramakrishnan Nair v. Easwari Amma is to be accepted as the correct view for the following reasons: S.214 is a mandatory** ## **W.P.(C) No.1431 of 2008** ## **:: 5 ::** **provision. It is not correct to say that, restrictions does not apply except in cases of substantive application. Mere filing of an execution petition will not empower the Court to proceed further with the application, since the restriction is "not to proceed with the application". The word "to proceed with" is to be understood as including continuing with the proceedings. However, it is not condition precedent to file a certificate as prescribed thereunder along with the application for impleadment, but it is sufficient if it is filed/produced later before proceedings are taken. In other words, Court shall not dismiss the application** _**in limine;**_ **but grant time for compliance with the provisions and to produce the certificate as required therein. But in the present case, the position is different. We hold that this is the correct view."** 6. In the present case, the substitution of the respondents in the pending execution proceedings has already been ordered by the court. I find that annulling those orders is not necessary, but, further proceedings in execution can be permitted only on production of the succession certificate if so found essential under law for executing the decree. I am not expressing any opinion as to whether the production of such ## **W.P.(C) No.1431 of 2008** ## **:: 6 ::** succession certificate is necessary for executing the decree, since that decree has not been produced before me. The execution court shall decide that question. Subject to the above observation, the writ petition is disposed of. Sd/- **(S.S.SATHEESACHANDRAN) JUDGE** sk/- //true copy//