JUDGMENT
Dayal, J.
1. These two appeals by the son of the decree-holder arise out of the same judgment. They have been heard together and this judgment will govern them both. The material facts are these:
2. Rai Bahadur Dalip Narain Singh obtained a 6nal mortgage decree against Chaudhary Raj Rajeshwar Prasad Singh and several other persons on the 27th o£ September 1950. On the 6th January 1951, the said Rai Bahadur Dalip Narain Singh died. On the 3rd August 1951, his son, the present appellant, applied for the execution of the decree in mortgage Execution Case No. 36 of 1951, in the Court of the Subordinate Judge, Begusarai. One of the judgment-debtors, namely, Chaudhary Lala Prasad Singh, objected to the execution under Section 47 of the Code of Civil Procedure mainly on the grounds (1) that as Rai Bahadur Dalip Narain Singh had executed a Will in favour of Deoniti Prasad Singh, he alone was entitled to execute the decree and not the present appellant and (2) that, in the absence of a succession certificate, it was not open to the appellant to obtain execution of the decree passed in favour of his deceased father. A Miscellaneous Case No. 41 of 1951 was started thereon.
3. Rai Bahadur Dalip Narain Singh also obtained a money decree against the said Chaudhary Raj Rajeshwar Prasad Singh on the 27th March 1950. On the 31st July 1950, he started execution of his decree in Money Execution Case No. 34 of 1950 in the Court of the Subordinate Judge, Begusarai. During the pendency of this case he died and his son, the present appellant, was substituted in his place by an order dated the 23rd of February 1951. After substitution, he continued the execution case. The judgment-debtor filed objection to the execution under Section 47 of the Code of Civil Procedure which was numbered as Miscellaneous Case No. 40 of 1951 of the said Court. Here also the judgment-debtor took the same two objections, namely, (1) that as Rai Bahadur Dalip Narain Singh had executed a Will in favour of Deoniti Prasad Singh, he was alone entitled to execute the decree and not the appellant, and (2) that it was essential for the appellant to obtain a succession certificate before he could execute the decree.
In both the cases the learned Subordinate Judge overruled the first objection but upheld the second one and allowed the miscellaneous cases holding that the above execution cases could not proceed until the appellant produced a succession certificate. Being thus aggrieved, the only judgment-debtor in execution Case No. 34 of 1950, has filed Miscellaneous Appeal No. 371 of 1952 against the order passed in Miscellaneous Case No. 40 of 1951 and the contesting judgment-debtor in Execution Case No. 36 of 1951 has filed Miscellaneous Appeal No. 372 of 1952 against the order passed in Miscellaneous Appeal No. 41 of 1951. There is no opposition on behalf of the respondents in both these appeals.
4. The relevant provision on the question at issue is contained in Section 214 (1) (b) of the Indian Succession Act, according to which a succession certificate is required to be produced if a person claiming on succession to be entitled to the effects of the deceased person wants the Court to proceed, upon an application made by him, to execute against a debtor of the deceased, a decree or order for the payment of his debt. Exactly similar provision was made by Section 4 (1) (b) of the Succession Certificate Act (Act VII of 1889), before the enactment of the present Indian Succession Act.
A Bench of the Calcutta High Court in Mahomed Usuf v. Abdur Rahim, ILR 26 Cal 839 (A), interpreted that section to mean that the bar to the Court for proceeding with the execution applied only to an original application made by a person claiming to be entitled to the effects of a deceased person and not to the application which was originally made by the decree-holder himself and was, on his death, sought to be continued by his heirs. I entirely agree with the view taken in this case.
A reading of the provision of Section 214 (1) (b) of the Indian Succession Act makes it perfectly clear that it only bars the institution of execution proceedings by a person claiming on succession and does not bar the continuance of the proceedings which had been instituted by the original decree-holder. Execution proceedings having once been instituted by the original decree-holder, his heirs can continue them without the production of the succession certificate irrespective of whether they are heirs by the principle of inheritance or by survivorship.
5. For the reasons given above it is manifest that the appellant could legally continue the execution of the money decree in Money Execution Case No. 34 of 1950 which had been started by the decree-holder, Rai Bahadur Dalip Narain Singh himself and the objection raised by the respondents has no merit.
6. Similarly, there is no merit in the objection raised by the contesting judgment-debtor respondent in Execution Case No. 36 of 1951. The final decree for the sale of the mortgaged properties cannot be described as a decree for payment of a debt within the meaning of Section 214 of the Indian Succession Act and the execution cannot be held to be barred on the ground that the appellant has not produced a succession certificate along with his execution application. (See Kaviraj Basudevanand v. Raghubir Saran Rastogi, (S) AIR 1955 Pat 284 (B).)
7. For these reasons, it appears to me that the decision of the Court below in both the cases is clearly erroneous, and must be set aside. The result is that both the appeals are allowed and it is directed that the execution at the instance of the appellant in both the execution cases shall proceed without production of any succession certificate. As there is no appearance or opposition on behalf of the respondents, there will be no order as to costs in both the appeals.
Choudhary, J.
8. I agree.