Haji Kasi Muhammed Vali Ahammed Sahib vs Makku Sahib

V.R. Krishna Iyer, J.—The only relevant decision among the many cited at the bar is the one reported in Chockalingam Chettiar v. Chockalingam Chettiar (A.I.R. 1942 Mad 445 (I), but the others have served to expand the arguments into respectable length. I shall not, therefore, deal with them at any length although I may briefly advert to them. The sole point which has given rise to this second appeal is as to the obligation of the appellant to produce a succession certificate for proceeding with the restitution he is entitled to by virtue of a decree in S.A. No. 1219 of 1962. A few facts. The plaintiff in O.S. No. 291 of 1955 sued Asha Beebi and obtained a decree which was confirmed in appeal. Undaunted, the lady challenged the decree in second appeal (S.A. No. 1219 of 1962) but during its pendency she died. The present appellant get himself impleaded as her legal representative and was allowed to continue the second appeal. Meanwhile, another event took place which has occasioned the question of law mooted in this case. The plaintiff executed the decree obtained by him even when the second appeal was pending, no stay having been granted by this court of the execution of the decree. Although he realised the decree amount during the pendency of the second appeal, he lost the the case and the judgment went against him with the present appellant on record. Thus a right to restitution became available to the present appellant and he naturally executed the appellate decree for this purpose. The executing court ordered restitution, but, in the appeal carried by the 3rd respondent, the learned Subordinate Judge came to the conclusion that the restitution could not be proceeded with in the absence of a succession certificate. He has, I believe unwittingly, contradicted him self by first stating that these restitution proceedings "cannot be considered as a claim for debt and no authority also has been cited in support of this view" and then gone on to conclude "I have no hesitation to hold that before allowing restitution and ordering attachment of the properties........for realisation of the debt due to the deceased, a succession certificate shall be obtained and produced by the petitioner." On a bare reading of Section 214 of the Indian Succession Act it is Clear that a succession certificate is not necessary where a debt is not involved.

It is now well settled that a proceeding by way of restitution is an execution petition (Vide Mahjibhai Mohanbhai Barot Vs. Patel Manibhai Gokalbhai and Others, ). Their Lordships held that "On a fair construction of the provisions of Section 144 of the Code of Civil Procedure.......an application for restitution is an application for execution of a decree". What then is the decree which is sought to be executed ? This is again clarified in the same ruling thus:

It is said that when an appellate Court makes a decree setting aside the decree of the first Court without providing for restitution, there is no executable decree for restitution. But this argument concedes that if the appellate Court provides for restitution, an application for restitution will be an application for execution of a decree. Even if it is an execution application, the procedure to be followed and the power of the Court to order a restitution would be confined to S. 144 of the Code. Therefore, an execution application for restitution would be governed by S. 144 of the Code of Civil Procedure. If the argument of the learned counsel for the appellant be accepted, it will lead to inconsistent positions depending upon whether the appellate decree gave a direction for restitution or it did not. If it did not, the application would become an original petition; if it did it would be an execution application. This inconsistency can be avoided, if such a direction for restitution be implied in every appellate decree setting aside or modifying the decree of the lower Court, even if it does not expressly give such a direction.

In the light of these observations, one has to read into every decree in reversal or variation, coming within the scope of Section 144, C.P.C. a direction for restitution even if it does not expressly state so. When restitution is claimed on the execution side what is really done is to enforce this implied direction in the appellate decree.

The question then arises as to whether this implied direction for restitution is a debt.

Counsel for the appellant had two arguments in this part of the case. He urged that a debt, as contemplated in Section 214 of the Indian Succession Act if it takes the shape of a decree, postulates an earlier liability and in the absence of such an antecedent liability, a decree cannot be deemed to be a debt. Illustratively he said that a decree for costs could not be treated as a debt within the meaning of Section 214 and the execution thereof could be proceeded with, without a succession certificate. Reliance was placed in this connection on the rulings reported in Khadim Husain Khan and Others Vs. Abdur Rahman Khan, and Tarak Dasi and Others Vs. Batta Krishna Roy and Others, . May be that a decree for costs creates a liability for the first time, but a direction for restitution may stand on a different footing. The anterior recovery of money on the basis of a wrong-decree creates a liability, the enforcement of which becomes possible when the reversing or varying decree is later passed. I am not, therefore, inclined to rest my decision on this rather dubious point.

The next submission by counsel was that the decree having been passed in his favour in S.A. No. 1219 of 1962, no succession certificate was required for him to execute that decree. Had it been passed in favour of Asha Beebi, he could have been called upon to produce a certificate. The ruling relied upon by the court below reported in AIR 1942 Mad 445 (1) holds that an application for restitution by the successful party is a debt and a succession certificate is required for such an application u/s 144 C.P.C., to be produced by the heir of the successful party. The learned Subordinate Judge is obviously wrong in thinking that a proceeding in execution u/s 144, C.P.C. is not a debt and it is unfortunate that he has made this error because the ruling reported in AIR 1942 Mad 445 was not only before him, but was relied upon by him. Incidentally, I may also mention that the learned Subordinate Judge was equally in error when he observed in perorating terms, "In letter, spirit and substance, he is not executing the decree in the second appeal." The ruling reported in Mahjibhai Mohanbhai Barot Vs. Patel Manibhai Gokalbhai and Others, was before the learned Judge and was relied upon by him and the decision clearly stated that a proceeding u/s 144 C.P.C. was one in execution of a decree. The errors of the Subordinate Judge apart, it is clear that if the appellant were claiming restitution as the heir of Asha Beebi, he would have had to produce a certificate. Is the legal situation different because the order has been passed in his favour and he is merely executing a decree obtained by him in appeal? I think it is, we are concerned with the enforcement of the decree, and Section 214 clause (b) is the relevant rule. It states that no court shall proceed without a succession certificate, upon an application of a person, claiming to be entitled to the effects of a deceased person, to execute against a debtor a decree or order for payment of his debt. In the present case, the proceeding is to execute against the debtor a decretal direction which must be impliedly read into the decree in S.A. No. 1219 of 1962 secured by the present appellant. He had come on record when the second appeal was pending and had obtained the decree as appellant. So, I hold that no succession certificate is necessary in the present case. The crucial distinction between the Madras case and the present one is that in the former, the Decree or order for restitution was passed in favour of the deceased and it was put into execution by the heir and here the decree or order as the case may be for restitution was obtained by the appellant and he himself is seeking to execute it. The appeal is allowed. The point is moot and the judgment of the learned Subordinate Judge being not too satisfactory, it is not fair to mulct the respondent with costs in these circumstances. Parties will bear their costs.