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2010 DIGILAW 365 (MP)

Municipal Corporation, Gwalior v. Jay Kishan Das Pamnani

2010-03-26

A.K.SHRIVASTAVA, S.K.GANGELE

body2010
Judgment A.K.Shrivastava, J. ( 1. ) Learned consel for the petitioner is heard on the question of admission. ( 2. ) A money decree to the tune of Rs. 4,00,282.00 was passed in favour of the decree-holder whose legal representatives are the present respondents. The original decree-holder put the decree in execution and during the pendency of the execution proceedings, the decree-holder did not survive and breathed his last. Eventually, an application for substitution was made by the respondents with a prayer to contiune the execution proceedings against the Municipal Corporation Gwalior/judgment-debtor. ( 3. ) An objection was raised by the judgment-debtor in the execution that the heirs of the original decree holder firstly should obtain succession certificate then only they can proceed with the execution. This objection of the judgment-debtor was accepted by learned Executing Court, as a result of which the heirs of the original decree-holder filed appropriate proceedings to obtain succession certificate and ultimately it was granted to them, and thereafter learned Executing Court permitted them to execute the decree by bringing them on record. ( 4. ) The contention of Shri Jain, learned counsel for the petitioner/judgment- debtor is that the respondents are not entitled for the interest for the period which they have taken for obtaining the succession certificate. The learned Executing Court has rejected these objections of the judgment-debtor by the impugned order. ( 5. ) In this manner, this petition under Article 227 of the Constitution of India has been filed by the judgment-debtor. ( 6. ) De jure, it has been contended by learned counsel for the judgment- debtor that the executing Court exceeded its jurisdiction by holding that the heirs of the original decree-holder are also entitled for the interest on the deceetal amount for the period during which they obtained the succession certificate, and hence, the impugned order be set aside. ( 7. ) According to us, the argument at the first blush appears to be quite attractive, however, on deeper scrutiny the same is found to be devoid of any substance. ( 7. ) According to us, the argument at the first blush appears to be quite attractive, however, on deeper scrutiny the same is found to be devoid of any substance. It was the judgment-debtor who objected the status of the legal representatives of the original decree-holder and on their objection, order was passed by the learned Executing Court directing the heirs of the decree holder to obtain succession certificate, and therefore, if some period had elapsed during which the succession certificate was obtained it was on account of the part of the learned Executing Court and equally the judgment debtor is also responsible because on his objection only the Execution Court directed the heirs of original decree-holder to obtain succession certificate so that they may be impleaded as the legal representatives of the deceased decree-holder and may be permitted to continue the execution. Hence, the legal representatives/respondents cannot be blamed. In this context, we may profitably place reliance on legal maxim actus curie neminem gravabit and also actus curiae neminem facit injuriam which would mean that Courts action or inaction should not prejudice any party and the act of the Court does wrong to no one. Indeed, on account of the objection raised by the judgment-debtor the Executing Court directed respondents to obtain the succession certificate, and therefore, from this angle also the respondents cannot be blamed and we find that the ball is in the Court of the judgment-debtor and they are responsible for their own act. In this context, we may profitably place reliance on the legal maxim alii per alium acquiritur obligatio meaning thereby one man cannot incur a liability through another. ( 8. ) We have gone through the reasonings assigned by the learned Executing Court rejecting the objections raised by the judgment-debtor and we find that reasons are cogent and we hereby extend our stamp of approval to those reasonings by affirming the impugned order. ( 9. ) Ex consequent, this petition fails and is hereby dismissed summarily. On going through the impugned order this Court finds that the civil suit was filed on 23.11.1969 viz. more than four decades back and the suit was decreed on 30.6.1981 thereafter it was put into the execution, therefore, we direct learned Executing Court shall take the matter de die in diem and should put its endeavour to decide the matter within three months.