Report No. 110

IX. Continuation of Proceedings

34.35. Section 214(1)(b)-Execution proceeding.-

With reference to section 214(1)(b), a controversy has arisen whether it bars the continuation of an execution proceeding without obtaining a succession certificate. According to one view1-4, the main purpose of section 214 is to protect the debtor from vexatious proceedings and from being harassed at different times by different persons claiming to be successors; the continuation of an execution proceeding by the legal representatives is not hit by the section, and a succession certificate need not be produced in such a case, according to this view.

The reasoning on which this view is based is that the bar of section 214(1)(b) applies only when persons claiming on succession themselves apply to execute a decree against a debtor for payment or recovery of the debt owing to the deceased. But, where no substantive application is initiated by the legal representatives, mere continuation of the execution proceedings already initiated by the plaintiff decree-holder is not barred5-7. It has also been pointed out that under 0. 22, R. 2, C.P.C. fresh application is not required.

According to a contrary view8-10 an application by a legal representative to bring himself on record in a pending case should be treated as an application for fresh execution, and therefore attracts the provisions of section 214.

According to a recent Kerala judgment11, section 214 applies to the continuation of execution proceedings.

1. Ramanatha v. K.V. Kuppuswami, AIR 1971 Mad 419 (421), para. 7 (Ramanujam, J.).

2. Raghubir Singh v. Rajeshwar Prasad Singh, AIR 1957 Pat 435.

3. Lal lmari v. Fulmati Kaur, AIR 1965 Pat 296, para. 2 (U.N. Sinha, J.).

4. Alaila Mabukhan v. Rajamma, AIR 1963 Andh 69 (DB).

5. Benode v. Purnendu, AIR 1973 Cal 352 (353) (A.K. Sarkar, J.).

6. Srinath Khandelwal v. Biswanath Pd., AIR 1972 All 321 (323, 324), para. 7-9 (M.N. Shukla,

7. Tejram Rajmal v. Rampyari Kundan Lal, AIR 1938 Nag 538.

8. Tejram Rajmal v. Rampyari Kundan Ltd, AIR 1938 Nag 538.

9. Chacko v. Varghese, AIR 1956 Tray-Co 183.

10. Ganeshamal v. Anand Kanwar, AIR 1968 Raj 273.

11. Ramkrishna Nair v. Easwari Amma, (1979) KLT 401 (June 4 and June 11, 1979): (1979) yearly Digest, (Supplement), 1994.

34.36. Recommendation to add an Explanation as to continuation of execution proceedings.-

Whatever be the true construction of the present wording, practical considerations require that the former view should be adopted, i.e. the continuation of execution proceedings by the legal representative should not be hit by the section. A suitable Explanation should be added to deal with the matter1. No doubt, the object of section 214(1) is to protect the interest of the debtor and to see that only the person entitled to succeed to the assets realises the debt owing to the deceased.

Nevertheless, there is a limit to which one can give effect to this logic. Considerations of expeditious disposal must, at some stage, prevail. If a wrong person continues the execution, the rightful heir can claim the fruits of the recovery from him.

1. Para. 34.45, infra.