Ramadoss Thattu Vandaiyar vs Kamalathammal

Srinivasan, J.—This revision petition is directed against order of the executing Court dismissing an application for execution filed by the

petitioner herein. The petitioner''s father obtained a decree in O.S. No. 222 of 1962 for recovery of money against the respondent. He died on

15.2.1979. The petitioner filed the execution petition on the ground that under a will dated 23.9.1973 the petitioner''s father bequeathed the entire

decree in favour of the petitioner and he was entitled to execute the same. In the petition he also averred that apart from the will he was entitled to

execute the decree as one of the sons of the deceased decree-holder.

The genuineness of the will was contested by the respondent. The court below, after considering the evidence on record, came to the conclusion

that the petitioner failed to prove the will. The question is one of fact and I do not find any infirmity or fallacy in the order of the court below. The

finding has to be confirmed.

The court below directed the petitioner to get a succession certificate before seeking to execute the decree on behalf of the legal heirs of the

deceased decree-holder. On that ground the petition was dismissed.

It is contended by learned Counsel for the petitioner that even in the absence of a will the petitioner being one of the sons of the deceased

decree-holder is entitled to execute the decree on behalf of the legal heirs of the decree-holder. According to him, it is the duty of the court to issue

summons to the other heirs of the decree-holder and proceed with the execution. He placed reliance on the judgment in Tanick Chamunder Butt

Acharjee and Ors. v. Gagoos Romesh Chunder Mitter 11 Southern Law Weekly Reporter 488. In that case the question related to a consent of

decree-holders of two cross-decrees fixing the mode in which set off should be made. The court held that it would prevent one of the decree-

holders from executing his decree without giving credit to the decree obtained by the other decree-holder and it would be most inequitable to allow

one of the decree-holders to execute his decree alone. In that context they made a reference to Section 207 of the Act 18 of 1859 which related

to two or more decree-holders. u/s 207, even though one of the holders of the same decree may take up execution of the whole decree he cannot

be allowed to take out execution of the decree to the extent of his own interest only. The said decision has no bearing on the present case.

Learned Counsel refers to the judgment of a Division Bench of this Court in Muthu Chettiar and Anr. v. Govindan and Anr. 41 M.L.J. 316 The

Bench held that even if a decree could be transferred in part to another person, under the Code, the transfer of the part of the decree was in the

position of a judgment-decree-holder, but he would not come within the words of Order 21, Rule 15, C.P.C., as the decree had not been passed

in favour of more persons than one. But the Bench held that the Court had jurisdiction to allow a part transferee of such decree-holders to

intervene in the execution of the decree if the decree-holder was found to be not duly prosecuting the execution petition. That judgment also has no

bearing on the present case.

In Muzhet Ud-Doula v. Berin Madhav AIR 1926 Cat. 811 on which learned Counsel placed reliance the question was only whether the

omission on the part of the decree-holder to state in the application for execution the names of all persons who were interested in the decree was a

defect as to invalidate the execution proceedings. The question was answered in the negative. That was a case of bona fide omission to mention the

names of some of the decree-holders. It was not a case where one of the decree-holders or some of them claimed exclusive right to execute the

entirety of the decree. It was not a case in which the rights of the other decree-holders were denied by the persons, who filed the execution

proceedings.

Learned Counsel drew my attention to Arunachala Chettiar v. Virappa Chettiar AIR 1929 Mad. 805 In that case the provisions of Order 21,

Rule 15, C.P.C., were considered and it was held that when a decree-holder executes a decree he executes the same for the benefit of all and

unless there is a direction by the Court the decree itself permits execution for the benefit of the executing creditor alone. That judgment will have no

relevance to the present case.

Learned Counsel invited my attention to Rule 147 of the Civil Rules of Practice. Under the Rule, if on application is made by one or more of

several joint decree-holders a written authority signed by other decree-holders authorising the applicant to execute the decree and receive the

money or property recovered shall be filed, the Court shall give notice of the order passed in execution to the decree-holders who have not joined

in the application. The court may also in its discretion give notice of any application taken out to the other decree-holders. That Rule will come into

play only if the Court passes an order for execution of the decree. The discretion of the Court has not been fettered by the Rule. In a case where

the applicant claims that he is exclusively entitled to execute the decree, the court is not bound to order notice to the other decree-holders. If the

Court finds that the applicant is not entitled to make an exclusive claim, the court may dismiss the application and it is not necessary for the Court

to order notice to the other persons who are entitled to the decree amount. Further, this is not a case of a decree passed in favour of several

persons. This is a case in which decree was passed only against one person and on his death one of his legal representatives seeking to come on

record claimed that he is the only person entitled to the decree amount. It has been held by this Court in P. Thimmayya Vs. P. Siddappa, , that co-

owner can claim the benefit of the proceedings on behalf of all the co-owners only if the person dose not deny the title of the other co-owners. In

the present case the petitioner claimed before the court below that he was exclusively entitled to the entire decree amount under the will of his

father. When the Court has found that he is not so entitled, it is not open to the petitioner to claim that he can execute the decree as one of the co-

owners on behalf of the other legal heirs of the deceased father.

The court below is right in insisting upon production of succession certificate by the petitioner and in dismissing the execution petition as the

petitioner has not produced any such succession certificate. The civil revision petition fails and is dismissed. No costs.