Tapuriah Jain & Associates

KARNATAKA HIGH COURT

H.V. VEERABHADRAIAH VS. H.S. KANTEERAVACHAR 

DATED : 14.07.2000

Summarised Judgement (Scroll for Complete Judgement)

Introduction :

This petition under Section 115 of the Civil Procedure Code, arises from the order dated 23-6-1998 passed by the Civil Judge (Junior Division) (Mr. J.J. Subramanya), Koratagere, in Execution Case No. 30 of 1997, whereby the Trial Court has sustained the objections of the judgment-debtor (petitioner herein) regarding the non-joinder of the legal representatives of the decree-holder and directed the decree-holder to rectify the defect within the time prescribed by the Court.

Facts of the Case :

That the decree-holders (respondents) have filed a suit for delivery of possession of the land in dispute i.e., S.No. 306/1 of Budamaranahalti village in favour of the plaintiff the opposite party. The suit had been filed in the year 1972 in O.S. No- 326 of 1972 on the file of the Additional Munsiff, Madhugiri. The Trial Court decreed the suit and the defendant, who is the revision petitioner before this Court filed R.A. No. 153 of 1974 on the file of the Civil Judge, Tumkur, which was dismissed by the Additional Civil Judge, Tumkur. Again the defendant-revision petitioner filed the second appeal in R.S.A. No. 787 of 1978 before the Hon'ble High Court of Karnataka. The second appeal was decided by this Court by way of compromise decree dated 3-6-1988. 

Thereafter the original decree-holder filed the Execution Petition No. 63 of 1988 in the Court of the Munsiff at Madhugiri. During the pendency of the said execution petition, the decree-holder died. Later on Execution Petition No. 58 of 1993 was filed by Smt. Susheelamma and Virajamma. That execution petition was withdrawn for some technical defect. Thereafter execution petition bearing No. 30 of 1997 was moved by the legal representatives of the deceased original decree-holder H.S. Rangachar, before the Civil Judge (Junior Division) and Judicial Magistrate of the First Class, Koratagere.

The judgment-debtor has filed his objections in the execution case taking various pleas to the effect that the execution petition filed by the decree-holders is not maintainable as all the legal representatives of the deceased decree-holder have not been impleaded in the petition. 

He further took the plea that decree-holder No. 2 was residing in Switzerland, and decree-holders Nos. 3 and 4 were residing at Bombay and Mysore respectively and he apprehends that the signatures of decree-holders Nos. 2 to 4 were forged by the first decree-holder. He also took the plea that the boundaries mentioned in the Schedule to the petition are wrong and that the judgment-debtor is ready and willing to deliver possession of 1 acre 04 guntas of land on the northern side of Sy. No. 306 measuring totally 8 acres adjoining Sy. No. 305 within the time fixed by the Hon'ble High Court of Karnataka, Bangalore.

Observation of Court :

In the present case, the decree has been passed for delivery of possession of land. The decree has been passed in terms of the compro-mise, wherein the revision petitioner has agreed to give vacant possession of the land in dispute involved in the suit. Such a decree cannot be termed to be a decree for debt or decree for money. The operation of Section 214 of (The Indian) Succession Act, 1925 is limited in its extent to claim decree for payment of debt or execution of decree for back payment of the debt amount. In this view of the matter, in my opinion, Section 214 of (The Indian) Succession Act, 1925 does not apply and the trial execution Court rightly rejected the objections of the judgment-debtor. It might have been that this objection was rejected on different ground, but the conclusion is that the objection was frivolous and not sustainable.

I have arrived at this conclusion on the basis of interpretation of Section 214 of (The Indian) Succession Act and (sic) terms the Division Bench decision of the Calcutta High Court. That the application for execution of decree being one for execution decreed for possession, the application could be made by applying Section 146, because the decree was not for payment of debt, nor execution of decree was sought for payment of any debt. Thus, considered this objection of the revision petitioner has rightly been rejected and the trial execution Court cannot be said to have committed any error.

Judgement :

It may also be mentioned here that in the affidavit enclosed to the execution petition the decree-holder had very clearly stated that my father died recently and as legal heirs of the deceased-Rangachar have filed this petition. Apart from this, the first petitioner got this land exclusively to his share in a partition, as such the other legal heirs were impleaded as pro forma parties. This affidavit is dated 11-11-1997 in which it is mentioned as H.S. Rangachar through legal heirs and that the names of two daughters had been mentioned in the application as legal representatives of the original decree-holder. Thus considered in my opinion the impugned order cannot be said to involve any question of jurisdiction within the framework of either of the clause (a), (b) or (c) of Section 115 of the Civil Procedure Code. 

The impugned order cannot be said to suffer from any error of law affecting the jurisdiction. The Trial Court without going into the question as to whether partition had taken place or not among the heirs has directed the decree-holder to rectify the defect and bring on record the legal representatives of the deceased decree-holder H.S. Rangachar. Even if it could be said that the Court below has committed any error, though 1 find none, the error cannot be said to be jurisdictional error coming within either of the clause (a), (b) or (c) of Section 115 of the Civil Procedure Code nor has been so shown or established.

The civil revision petition, as such, in my opinion is devoid of merits. It indicates nothing, but the attitude of the judgment-debtor to linger on the proceedings and to retain possession illegally in spite of the decree having been passed against him. Hence, this revision petition has got to be dismissed.

It is also clarified that since 1972 the decree-holder has been deprived of possession, it is being kept open to the decree-holders to claim compensation against the judgment-debtor after he gets possession of the land. The civil revision petition is dismissed with coats and the costs is assessed at Rs. 1,100/- payable by the judgment-debtor (revision petitioner herein) to the decree-holders respondents.

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KARNATAKA HIGH COURT

H.V. VEERABHADRAIAH VS. H.S. KANTEERAVACHAR & OTHERS

DATED : 14.07.2000

Equivalent citations: AIR 2001 Kant 171, 2001 (4) KarLJ 31

Bench: H N Tilhari

ORDER

1. This revision petition under Section 115 of the Civil Procedure Code, arises from the order dated 23-6-1998 passed by the Civil Judge (Junior Division) (Mr. J.J. Subramanya), Koratagere, in Execution Case No. 30 of 1997, whereby the Trial Court has sustained the objections of the judgment-debtor (petitioner herein) regarding the non-joinder of the legal representatives of the decree-holder and directed the decree-holder to rectify the defect within the time prescribed by the Court itself i.e., one month and the other objection raised by the judgment-debtor to the effect that the execution application is not maintainable because no probate and succession certificate has been attached or produced along with the application for execution, as well as the objection regarding the identity of the property or the signatures of the decree-holder Nos. 2 to 4 alleging to have been forged by the first decree-holder.

2. The facts of the case in brief are: That the decree-holders (respondents) have filed a suit for delivery of possession of the land in dispute i.e., S.No. 306/1 of Budamaranahalti village in favour of the plaintiff the opposite party. The suit had been filed in the year 1972 in O.S. No- 326 of 1972 on the file of the Additional Munsiff, Madhugiri. The Trial Court decreed the suit and the defendant, who is the revision petitioner before this Court filed R.A. No. 153 of 1974 on the file of the Civil Judge, Tumkur, which was dismissed by the Additional Civil Judge, Tumkur. Again the defendant-revision petitioner filed the second appeal in R.S.A. No. 787 of 1978 before the Hon'ble High Court of Karnataka. The second appeal was decided by this Court by way of compromise decree dated 3-6-1988. 

Thereafter the original decree-holder filed the Execution Peti-tion No. 63 of 1988 in the Court of the Munsiff at Madhugiri. During the pendency of the said execution petition, the decree-holder died. Later on Execution Petition No. 58 of 1993 was filed by Smt. Susheelamma and Virajamma. That execution petition was withdrawn for some technical defect. Thereafter execution petition bearing No. 30 of 1997 was moved by the legal representatives of the deceased original decree-holder H.S. Rangachar, before the Civil Judge (Junior Division) and Judicial Magistrate of the First Class, Koratagere.

3. The judgment-debtor has filed his objections in the execution case taking various pleas to the effect that the execution petition filed by the decree-holders is not maintainable as all the legal representatives of the deceased decree-holder have not been impleaded in the petition. He further took the plea that decree-holder No. 2 was residing in Switzerland, and decree-holders Nos. 3 and 4 were residing at Bombay and Mysore respectively and he apprehends that the signatures of decree-holders Nos. 2 to 4 were forged by the first decree-holder. He also took the plea that the boundaries mentioned in the Schedule to the petition are wrong and that the judgment-debtor is ready and willing to deliver possession of 1 acre 04 guntas of land on the northern side of Sy. No. 306 measuring totally 8 acres adjoining Sy. No. 305 within the time fixed by the Hon'ble High Court of Karnataka, Bangalore.

4. The execution Court referred to the memo filed by the Counsel for the decree-holders that Smt. Susheelamma, daughter of the deceased decree-holder and one of the legal representatives of the deceased-H.S. Rangachar died four years back after the filing of the previous execution petition. Taking that into consideration, the Court below opined that the interest of Susheelamma will be inherited by her sons and by her mother. The execution Court opined that because of the non-joinder of all the legal representatives of the deceased decree-holder, there was only technical defect and granted one month's time to rectify the defect by impleading the legal representatives of the deceased-Susheelamma.

5. As regards the objection to the effect that the decree-holder has not filed probate and succession certificate along with the execution petition and, therefore, the execution petition was not maintainable, the trial execution Court made reference to certain decisions and thereafter it held that the objections were frivolous in view of Section 146 of the Code of Civil Procedure and the law laid down by this Court in T. Ramaiah v K.S. Roopraj and Others. As regards the objection regarding the boundaries, the execution Court has observed that the question whether the boundaries furnished in the execution petition were wrong or whether the property was identifiable or not was not sustainable. It further observed as under:

"I am of the opinion that the objection raised by the judgment-debtor regarding the boundary and identification of property is not sustainable. To avoid the controversy the judgment-debtor can request the Court to issue necessarydirection to the warrant executing the person at the time of passing the order to issue warrant".

It also observed that "the judgment-debtor has not produced any materials to show that the signatures of the decree-holders Nos. 2 to 4 are forged one. Hence, without much discussion, it came to the conclusion that the contention raised by the judgment-debtor regarding the signatures of the decree-holders Nos. 2 to 4 is not sustainable".

6. Feeling aggrieved by the said order of the execution Court, the judgment-debtor, who appears to be much interested in lingering the matter and who does not appear to be very fair, instead wants to delay the implementation of the decree has come up before this Court in revision under Section 115 of the Civil Procedure Code.

7. It has to be taken note of that the suit for decree for delivery of possession had been filed in the year 1972 and the judgment-debtor revision petitioner by adopting all tactics has really carried over the litigation to this year 2000. We can imagine the effect of such lengthy litigation which was continued for almost three decades i.e., twenty-eight years.

8. I have heard Sri A.V. Gangadharappa, learned Counsel for the revision petitioner and Sri Javid Hussain, learned Counsel for respondent 1.

9. The learned Counsel for the revision petitioner contended that the Trial Court erred in law in holding the execution petition to be maintainable even without furnishing or filing of the probate and succession certificate by relying on the single decision of this Court in T. Ramaiah's case, supra. The learned Counsel for the revision petitioner in support of this connection (contention) has referred to the decision of the Division Bench of this Court in Mallappa (deceased) by L.Rs v Assistant Commissioner and Land Acquisition Officer. The learned Counsel for the revision petitioner contended that the Division Bench of this Court has been pleased to overrule the Single Judge decision of this Court in T. Ramaiah's case, supra, and has held that without filing probate or succession certificate the proceeding could not be maintained in view of Section 214 of the Indian Succession Act, 1925. 

The learned Counsel for the revisionist, further made reference to decision of this Court in Smt. Kariyamma and Others v Assistant Commissioner and Land Acquisition Officer, Chitradurga and submitted that as such the finding of the Court below that application for execution moved by legal heirs has been maintainable even without first obtaining and filing the probate or succession certificate is not in keeping pace with the letter and spirit of Section 214 of the Indian Succession Act. The learned Counsel urged that it was mandatory that the legal representatives of the deceased decree-holder to obtain the probate or succession certificate for realisingthe decretal amount due to the decree-holder, by execution proceedings irrespective of the fact whether the legal representatives have initiated proceedings at the first instance or have come on record during the course of the execution proceedings.

10. As regards this contention, the learned Counsel for the respondents submitted that in this case the attention of the Court was not invited to the provisions of Section 146 of the Civil Procedure Code that there is, no doubt, as contended by the learned Counsel for the respondents no reference appears to have been made to Section 146 of the Civil Procedure Code. But, when I peruse Section 146 of the Civil Procedure Code, I find that it provides as under:

"146. Proceedings by or against representatives.--Save as otherwise provided by the Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person then the proceeding may be taken or the application may be made by or against any person claiming under him".

11. This provision is subject to saving clause as indicated by use of expression "save as otherwise provided by the Code or by any law for the time being in force". Section 214 of (The Indian) Succession Act, 1925, as held by the Division Bench of this Court relied, no doubt, requires the filing of Probate and Succession Certificate by the heirs of the deceased decree-holder. But the Division Bench decision, in my opinion, does not help the revision petitioner. As per the language of Section 214 of (The Indian) Succession Act, 1925 it applies only in the matter of cases where the suit is filed for the recovery of money seeking decree for payment of debt, or it applies to cases in relation to execution of money decree i.e., decree for the recovery of money. It will be appropriate at this juncture to quote Section 214 of (The Indian) Succession Act, 1925 in extenso-

"214. Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons.--(1) No Court shall-

(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effect of the deceased person or to any part thereof; or

(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) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or

(ii) a certificate granted under Section 31 or Section 32 of the Administrator General's Act, 1918 and having the debt mentioned therein, or

(iii) a succession certificate granted under Part X and having the debt specified therein, or

(iv) a certificate granted under the Succession Certificate Act, 1889, or

(v) a certificate granted under Bombay Regulation No. 8 of J827 and if granted after the first day of May, 1889 having the debt specified therein.

(2) The word "debt" in sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes".

12. The expression in Section 214 of (The Indian) Succession Act, 1925, when we take clause (a) of sub-section (1), or clause (b) the material expression used therein is for payment of his debt, or expression decree or order for the payment of his debt. The expression by itself clearly indicates a sum of money payable at present or in future by reason of the present application. The expression debt means money payable on the basis of pre-existing debt or liability.

13. In Stroud's Judicial Dictionary or Words and Phrases, Fourth Edition at page 696 with reference to the decision in Rawley v Rawley, Seldon v Wilde, debt has been defined -- DEBT (1) A "debt" is a sum payable in respect of a liquidated money demand recoverable by action.

14. In Words and Phrases, Permanent Edition, Volume II at page 309, it has been defined as under:

"The ordinary legal sense of the term "debt" is an obligation for the payment of money founded upon a contract, express or implied. Its technical meaning at common law was "a sum of money due to certain and express agreement", -- that for which an action of debt or indebitatus assumpsit would lie. But it is also used in the larger sense of that which one person is bound to pay to another under any form of obligation. This is its general significance. It includes all that is due to a 'under any form of obligation or promise'. In the main, the distinguishing characteristic of such an obligation is that it is for a sum certain, or a sum readily reducible to a certainty. It is an obligation to pay a sum certain, or a sum which may be ascertained by a simply mathematical calculation from known facts, regardless of whether the liability arises from contract or is implied or imposed by law. Whatever the law enjoins one to pay takes the legal classification of a debt. City of Newark v Lehman's Estate " .

(emphasis supplied)

15. In Black's Law Dictionary, Seventh Edition at page 410, the expression 'debt' has been defined as liability on a claim a specific sumof money due by agreement or otherwise......The action of debt lies wherea party claims the recovery of a debt that is a liquidated or certain sum of money due him (sic).

(emphasis supplied)

16. In the case of Pradeshiya Industrial and Investment Corporation of Uttar Pradesh v North India Petrochemicals Limited , their Lordships of the Supreme Court while dealing with Section 433 particularly clause (e) of the Companies Act which reads as under:

"If company unable to pay its debts", Their Lordships observed at paragraph 26 of the said report as under:

"A debt under this section must be a determined or a definite sum of money payable immediately or at a future date".

17. In the case of J. Jermons v Aliammal , dealing with the expression 'debt' in the context of Rule 26(1)(a) of Second Schedule to Income-tax Act, their Lordships interpreted the expression "debt" as follows:

"The word "debt" is used in the order/notice issued under the Income-tax Act in the same meaning in which it is used in Section 60 of the Civil Procedure Code. Ordinarily "debt" means money that is owed an existing obligation to pay a certain amount a sum of money due from one person to another. Debts can be classified having regard to the criteria for payment into three categories;

(i) debt which has become due and is payable at present (debitum in praesenti) e.g. in monthly tenancy, rent becomes due after the expiry of each month like rent for the month of January becoming due and payable on February 1;

(ii) debt which has become due but is payable at a future date (debitum in praesenti, solvendum in futuro); in the above example if under an agreement of tenancy rent is payable on the 15th of the following month, the rent for January becomes due on February 1, but is payable on February 15; and

(iii) contingent debt which becomes payable on the happening of a certain event which may or may not occur, in the above instance the rent for the month of January will not be a debt in the preceding month of December for the tenant may or may not reside in the next month".

(emphasis supplied)

18. In paragraph 15 of the said report, their Lordships observed that in our view the word "debt" in the said prohibitory order is used in the first and the second sense with reference to Section 214(1)(a) and (b) of (The Indian) Succession Act, 1925, the expression used is payment of his debt, or the expression for payment of his debt appears to cover the suitsfor payment of debt in the sense of liability to pay liquidated certain sum of money that is owed by the person who is called a debtor. It may be existing obligation to pay certain sum or certain amount of money due from one person to another. Pay it a debt in praesenti or debitum in praesenti, solvendum in futuro, or even it may be a contingent debt. But what is essential to be taken not a of is that a debt is a sum or obligation to pay definite, determined, quantified, certain, sum of money for realisation or recovery of which the suit is to be filed or has been filed or application for execution of decree for payment of such sum is made. Section 214 of (The Indian) Succession Act, 1925 will not apply, nor affect the suits for recovery of possession of immovable property or the land or the like nor application for execution of such decree.

(emphasis supplied)

19. When I so observe, I find support for my view from the Full Bench decision of Calcutta High Court in the case of Banohharam Majumdar v Adyanath Bhattacharjee, the relevant observation is at pages 938 and 939 as well as from the decision of the Calcutta High Court in Tulsi Debya v Bibhuti Bhusan .

20. In the present case, the decree has been passed for delivery of possession of land. The decree has been passed in terms of the compro-mise, wherein the revision petitioner has agreed to give vacant possession of the land in dispute involved in the suit. Such a decree cannot be termed to be a decree for debt or decree for money. The operation of Section 214 of (The Indian) Succession Act, 1925 is limited in its extent to claim decree for payment of debt or execution of decree for back payment of the debt amount. In this view of the matter, in my opinion, Section 214 of (The Indian) Succession Act, 1925 does not apply and the trial execution Court rightly rejected the objections of the judgment-debtor. 

It might have been that this objection was rejected on different ground, but the conclusion is that the objection was frivolous and not sustainable. I have arrived at this conclusion on the basis of interpretation of Section 214 of (The Indian) Succession Act and (sic) terms the Division Bench decision of the Calcutta High Court. That the application for execution of decree being one for execution decreed for possession, the application could be made by applying Section 146, because the decree was not for payment of debt, nor execution of decree was sought for payment of any debt. Thus, considered this objection of the revision petitioner has rightly been rejected and the trial execution Court cannot be said to have committed any error.

21. It may also be mentioned here that in the affidavit enclosed to the execution petition the decree-holder had very clearly stated that my father died recently and as legal heirs of the deceased-Rangachar have filed this petition. Apart from this, the first petitioner got this land exclusively to his share in a partition, as such the other legal heirs were impleaded as pro forma parties. This affidavit is dated 11-11-1997 inwhich it is mentioned as H.S. Rangachar through legal heirs and that the names of two daughters had been mentioned in the application as legal representatives of the original decree-holder. Thus considered in my opinion the impugned order cannot be said to involve any question of jurisdiction within the framework of either of the clause (a), (b) or (c) of Section 115 of the Civil Procedure Code. 

The impugned order cannot be said to suffer from any error of law affecting the jurisdiction. The Trial Court without going into the question as to whether partition had taken place or not among the heirs has directed the decree-holder to rectify the defect and bring on record the legal representatives of the deceased decree-holder H.S. Rangachar. Even if it could be said that the Court below has committed any error, though 1 find none, the error cannot be said to be jurisdictional error coming within either of the clause (a), (b) or (c) of Section 115 of the Civil Procedure Code nor has been so shown or established.

22. The civil revision petition, as such, in my opinion is devoid of merits. It indicates nothing, but the attitude of the judgment-debtor to linger on the proceedings and to retain possession illegally in spite of the decree having been passed against him. Hence, this revision petition has got to be dismissed.

23. It is also clarified that since 1972 the decree-holder has been deprived of possession, it is being kept open to the decree-holders to claim compensation against the judgment-debtor after he gets possession of the land.

24. The civil revision petition is dismissed with coats and the costs is assessed at Rs. 1,100/- payable by the judgment-debtor (revision petitioner herein) to the decree-holders respondents.