IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 WP(C).No. 15695 of 2007(R) -------------------------- AGAINST THE ORDER DATED 22/02/2007 IN EP 340/03 IN OS.55/1994 of PRL.SUB COURT,IRINJALAKUDA .................... PETITIONERS: ------------ 1. ELSY, W/O LATE C.V.ANTHONY, CHAMBALUR DESOM, KALOOR VADAKKUMURI VILLAGE, PALAYAMPARAMBU P.O., ANNAMANADA, THRISSUR. 2. JOY ANTHONY, S/O LATE C.V.ANTONY, CHAMBALUR DESOM, KALOOR VADAKKUMURI VILLAGE, PALAYAMPARAMBU P.O., ANNAMANADA, THRISSUR. 3. SHINY, W/O PAINADATHU JOY, CHAMBALUR DESOM, KALOOR VADAKKUMURI VILLAGE, PALAYAMPARAMBU P.O., ANNAMANADA, THRISSUR. 4. SAINCHAN ANTHONY, S/O LATE C.V.ANTHONY, CHAMBALUR DESOM, KALOOR VADAKKUMURI VILLAGE, PALAYAMPARAMBU P.O., ANNAMANADA, THRISSUR. 5. SHIBU ANTHONY, S/O LATE C.V.ANTHONY, CHAMBALUR DESOM, KALOOR VADAKKUMURI VILLAGE, PALAYAMPARAMBU P.O., ANNAMANADA, THRISSUR. BY ADV. SRI.MURALI PURUSHOTHAMAN SRI.DEEPU LAL MOHAN RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, P.W.D.(ROADS), CENTRAL CIRCLE, ALUVA. BY GOVT.PLEADER SRI V.T.K.MOHANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXTS: EXT.P1 PHOTOCOPY OF E.A.NO.353/2007 DATED 22/2/2007 FILED BY THE PETITIONERS BEFORE THE COURT BELOW IN E.P.340/03 IN O.S.55/94. EXT.P2 PHOTOCOPY OF E.A.NO.354/2007 DATED 22/2/2007 FILED BY THE PETITIONERS BEFORE THE COURT BELOW IN E.P.NO.340/03 IN O.S.NO.55/94. EXT.P3 PHOTOCOPY OF THE ORDER DATED 28/3/2007 PASSED BY THE LEARNED SUB JUDGE IN EA.NO.353/2007; AND L;E.A.NO.354/07 IN E.P.340/2003 IN O.S.55/94. M.N. KRISHNAN , J ========================== W.P.(C) NO. 15695 OF 2007 ========================== Dated this the 18th day of August, 2007. ORDER This writ petition is preferred against the order of the Principal Sub Judge, Irinjalakuda in E.A. Nos. 353 and 354 of 2007 in E.P. No. 340/2003. The decree holder had obtained a decree from the Government. For realisation of the amount an execution petition was filed. During the pendency of the execution petition, the decree holder died and his legal representatives moved the application for impleadment as E.A. No. 353/2007 and for amendment E.A. No. 354/2007. The relief sought for in the execution petition is to realise the amount due to the decree holder. The executing court relying upon the decision of this Court reported in Ramakrishnan Nair v. Easwari Amma (1979 KLT 401) held that the succession certificate is necessary to continue with the execution proceedings. The court below also noted that the same view has been followed by this Court in the decision reported in M.C. Sreedharan v. Patteeri Kumaran (AIR 1981 Kerala 51). So it W.P.(C) NO. 15965/2007 : 2 : was held that the proposed legal representatives are bound to produce the succession certificate. 2. The learned counsel for the writ petitioner would submit that it is not necessary in a pending execution proceedings especially when the decree amount has already been deposited by the judgment debtor prior to the death of the decree holder. It is submitted that the amount was reported to be deposited on 11.01.2007 and the decree holder passed away on 12.02.2007. 3. I had gone through the decision of this Court reported in Ramakrishnan Nair v. Easwari Amma (1979 KLT 401) which had followed the views taken by the Nagpur, Travancore Kochi and Rajastan High Courts i.e., Narayana Pillai v. Narayana Panicker (1956 KLT 852), (Tejraj Rajmal v. Rampyari) AIR 1938 Nagpur 528. In paragraph 13, this Court held that the common sense dictates that the purpose of Section 214 of the Indian Succession Act is to protect the interest of the debtor by ensuring that payment is made to the person who in law is entitled to the W.P.(C) NO. 15965/2007 : 3 : assets of the deceased creditor. It was further held that there is no difference in view that, if the decree holder dies before filing any execution petition or after the disposal of an execution petition filed by him, his legal representative has to produce succession certificate if he is to file an application for execution of the decree. 4. The learned counsel for the writ petitioner submits that the decision reported in (Akula Rangappa v. Narayana Swamy) AIR 1988 Andhra Pradesh 314 held that whether a decree holder himself filed an execution application and he dies before executing the decree and recording full satisfaction the legal representatives are entitled to come on record without obtaining a succession certificate as required under Section 214 (1)(b) of the Act. The learned counsel also had referred to the decision of the Gujarat High Court in (M.S. Kaushik Transport Co. v. State of Gujarat) AIR 1990 Gujarat 102 which also held a similar view. The learned counsel then had drawn my attention to the decision to the Alahabad High Court reported in S. W.P.(C) NO. 15965/2007 : 4 : Khandelwal v. B. Prasad (1972 Alahabad 321) wherein the single judge took the view that the bar under Section 214(1)(b) does not apply to application of person seeking to continue the execution proceedings after the death of the original decree holder. This Court in the decision reported in Resilikutty v. State of Kerala (1998 (2) 912) held that succession certificate is not necessary to a case pertaining to a land acquisition reference and the court distinguished 1979 KLT 410 on the ground that whether the compensation under the land acquisition is a debt or not did not come up for consideration in the said case. In view of the various pronouncements which holds the view that the succession certificate is not necessary when the decree holder dies pending proceedings of an execution application I feel that the matter requires reconsideration and therefore I feel that the matter has to be referred to a division bench for considering the question whether succession certificate is necessary in a case where the decree holder dies after filing of the execution petition and on W.P.(C) NO. 15965/2007 : 5 : deposit of the amount by the judgment debtor prior to the death. The matter will be placed before the Honorable Chief Justice for appropriate orders. M.N. KRISHNAN, JUDGE. rv W.P.(C) NO. 15965/2007 : 6 :