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2001 DIGILAW 1021 (AP)

Ulli Nagaiah v. Chekka Mahalakshmamma

2001-09-12

L.NARASIMHA REDDY

body2001
L. NARASIMHA REDDY, J. ( 1 ) THIS revision petition is filed against the order of the Junior Civil Judge, Darsi dated 16-09-1999 passed in E. A. No. 115 of 1999 in E. P. No. 57 of 1997 in s. C. No. 121 of 1990. The subject matter of this revision provides an example as to how the troubles of the decree-holder start after obtaining the decree. ( 2 ) THE 1st petitioner (who is no more) filed S. C. No. 121 of 1990 in the court of the Junior Civil Judge, Darsi against the respondent for recovery of rs. 2,239/ -. The said suit was decreed on 04-10-1994. To realize the decretal amount the 1st petitioner herein filed e R. No. 57 of 1997 with a fond hope that he will continue in the execution proceedings and they will be able to realize the fruits of the decree. As usual, the proceedings in the decree were protracted for one reason or the other. During the pendency of the E. R the first petitioner died on 7-7-1999. The wife and son of the 1st petitioner filed E. A. No. 115 of 1999 under Order XX Rule 3 read with Section 146 C. P. C. to bring them on record as legal representatives of the deceased 1st petitioner. The executing Court rejected the application relying upon the judgment of this Court reported in Kastala Gopaiah v. Dupagunta Venkateeswar Rao and by taking the view that the petitioners 2 and 3 have to obtain succession certificate before filing an application for coming on record as legal representatives. ( 3 ) SRI M. N. Narasimha Reddy, learned Counsel for the petitioners had submitted that requirement to obtain succession certificate would arise only if the decree holder died even before he had initiated any execution proceedings. He also distinguished the decision of this Court in Kastala gopaiah s case (supra) by submitting that the said decision related to a case where the decree holder died even before filing the E. P, whereas in the present case the decree holder filed the e. P. and he died when the E. P. was pending. He also submitted that the order of the executing Court cannot be sustained in law. ( 4 ) IT is not disputed that the decree holder, 1st petitioner herein, filed the E. P. during his life time in the year 1997. He also submitted that the order of the executing Court cannot be sustained in law. ( 4 ) IT is not disputed that the decree holder, 1st petitioner herein, filed the E. P. during his life time in the year 1997. It was only on 7-7-1999, i. e. , two years after filing the E. P. he died. The petitioners 2 and 3 have filed E. A. No. 115 of 1999 only to continue the proceedings in the E. P. but not to initiate the execution proceedings as such. ( 5 ) IN Kastala Gopaiah s case (supra) decree was passed on 12-7-1976; decree holder died on 14-4-1980 and the E. P. was filed by his son on 12-7-1988. The distinguishing features of the said case are that E. P. was filed subsequent to the death of the decree holder and that too by one of the legal representatives. The principle in the said case has absolutely no application to this case. ( 6 ) ON the other hand, a Full bench of this Court in its decision in mabukhan v. Rajamma had taken the view that the necessity to obtain the succession certificate would arise for initiation of the execution proceedings afresh and not in cases of continuing the execution proceedings which are already initiated. ( 7 ) IN my view, the executing court failed to maintain distinction between the initiation of the execution proceedings and to continue the execution proceedings, If a decree holder dies before he initiates the execution proceedings such a decree becomes part of the estate of the deceased decree holder. The question as to who is competent to reap the benefits of the decree becomes relevant and such a dispute can be resolved only in the proceedings initiated under the indian Succession Act. However, in cases where the decree holder has already filed E. P. but died during the- pendency of the same, the provisions of the C. P. C. squarely cover the matter and the provisions of the Indian succession Act have no application in such circumstances. ( 8 ) IN that view of the matter, the order of the Executing Court is set aside The executing Court is directed to bring the petitioners 2 and 3 herein as legol representatives of the deceased decree holder and permit them to continue the execution proceedings. ( 8 ) IN that view of the matter, the order of the Executing Court is set aside The executing Court is directed to bring the petitioners 2 and 3 herein as legol representatives of the deceased decree holder and permit them to continue the execution proceedings. The decree in the small causes suit was passed in the year 1994 and still remains unexecuted. Therefore, the executing Court is further directed to dispose of the E. P. within a period of one month from the date of receipt of this order. The Civil Revision Petition accordingly allowed. No costs. Revision allowed.