ZAFAR AHMED RAJPUT , J.---By means of this order , I intend to dispose of C.M.A. No.116 of 2021, whereby decree holder No.2(i) seeks directions to Nazir of this Court for the release of the share of his son, namely , Azmat Rasul [deceased decree holder No.2. (iv)] to him.
2. Briefly stated facts for the disposal of the listed application are that the decree-holders, namely , (1) Arshad Mehmood Raja (2) Mrs. Mumtaz Shafat and (3) Mrs. Nazneen Shahzad filed the instant execution application, seeking execution of the decree, dated 03.01.2009, passed in terms of Settlement Agreement dated 7th November , 2008 ("the Agreement") in Suit. No. 1348 of 2003, filed by the Judgment debtor No.1, namely , Muhammad Saeed Khan inter alia for administration, possession, partition, etc. in respect of the estate left by Muhammad Sarwar Khan, the deceased father of D.Hs and private J.Ds., who expired on 19th June 2003 leaving behind a number of moveable and immovable properties. The Agreement, inter alia, stipulated that out of properties left by their said deceased predecessor , a piece of agricultural land measuring 50 acres shall be donated for charitable purposes as per his will and the parties shall jointly obtain value of the remaining properties from property dealers of the area.
As alleged by the decree-holders, the parties failed to act upon the terms of Agreement and decree; hence, they filed the instant execution application.
3. This Court, vide order dated 24.02.2014, directed the Nazir to sell out undisputed properties of the deceased predecessor of the parties through auctio n. Subsequently , one of the properties viz. agricultural land admeasuring 245 acres, situated in Deh-II, Jhol Town, Taluka Sinjhoro, District Sanghar was sold out for consideration of Rs.
10,85,06,265/-, which amount was deposited with the Nazir of this Court, who invested it with National Saving Centre, Karachi in compliance of the Court's order , dated 26.03.2018. Thereafte r, vide order dated 10.08.2020, Nazir of this Court was directed to disburs e the said amount along with profit accru ed thereon amongst the decree- holders and the Judgment debtors as per the terms of the decree, dated 03.01.2009. As per Nazir's report, dated 16.09.2020, after deducting his 1% fee as well as Rs.18,00,000/- being commission of estate agent, an amount of Rs. 9,62,36,024/- is available for distribution among following six legal heirs of the deceased/D.Hs. and J.Ds: S.No. Name of legal heirs Relation Share Amount
01. Muhammad Saeed KhanSon Rs.21,385, 783/ -
02. Muhammad Farooq RajaSon Rs.21,385,783/-
03. Arshad Mehmood Raja Son Rs.21,385,783/-
04. Mrs. Shehnaz Jamshed Daughter Rs. 10,692,891/ -
05. Mrs. Nazneen Shahzad Daughter Rs. 10,692,891/ -
06. Mrs. Mumtaz Shafaat Daughter Rs. 10,692,893/ -
4. During the pendency of the instant execution application, Mrs. Mumtaz Shafaat, the decree holder No.2, died on 10.01.2020; hence, her legal heirs filed C.M.A. No 211 of 2020, under Order XXII, Rule 3, C.P.C., which was allowed by this Court vide order , dated 26.10.2020, and her legal heirs, namely , (i) Shafat Rasul Janjua (Husband)
(ii) Shafqat Rasul (iii) Wajahat Rasul .(iv) Azmat Rasul (sons) and Nida Shafat (daughter) were brought on record by filing amended title to the execution application by arraying them as decree-holders No. 2.(i) to (v). Azmat Rasul [decree-holder No. 2. (iv)] being unsound mind was made party in the execution application through his next friend- father Shafat Rasul Janjua [decree-holder No. 2. (i)].
5. On 24.11.2020, learned counsel for the decree-holders No 2(i) to (v) filed C.M.A. No. 288 of 2020, seeking directions to Nazir to release. the share of Azmat Rasul to his father Shafat Rasul Janjua on the ground that the latter being real father of the former was his natural guardian and, therefore, he was entitled to receive the same.
This Court vide order , dated 10.02.2021, put the learned counsel on notice to satisfy the Court as to how the said C.M.A. was maintainable without obtaining any Guardianship Certificate under the Lunacy Act, 1912 from the competent Court of. Law. Thereafter , on 15.03.2021, learned counsel for the said decree-holders filed the listed application (C.M.A. No.116 of 2021) disclosing that Azmat Rasul died on 11.02.2021. Learned counsel for the said decree-holders vide order , dated 06.05.2021, was again put on notice to satisfy the Court on the point of maintainability of listed C.M.A. as to how the share of deceased decree holder Azmat Rasul can be released to his father Shafat Rasul Janjua without obtaining Succession Certificate in terms of section 214 of the Succession Act, 1925 (the "Act").
6. Learned counsel for the decree-holder s Nos. 2 (i) to (v) has contended that Shafat Rasul Janjua, the decree- holder No. 2 (i), is the real father of Azmat Rasul, the deceased decree-holder No. 2 (iv); hence, he is legally entitled to receive the share amount of the latte. and for that he is not required to obtain any Succession Certificate as the other legal heirs of the deceased decree-holder No. 2 have already executed a power of attorney in favour of decree-holder No. 2 (i).
7. Heard the learned counsel for the decree-holder Nos. 2 (i) to (v) and perused the record.
8: Section 214 of the Act reads as under: "214. Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons. (1) No Court shall:--
(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or
(b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming, of::-
(i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or
(ii) a certificate granted under section :1 or section 32 of the Administrato, General ; Act, 1913, and having the debt mentioned therein, or
(iii) a succession certificate granted under Part X and having the debt specified therein, or
(iv) [Omitted by the Federal Laws (Revision and Declaration) Ordinance 30CV1 1 of 1981 1
(v) a certificate granted under Sindh Regulation No. VIII of 1827 and, if granted after the first day of May, 1889, having the debt specified therein.
(2) The word "debt" in subsection (1) includes any debt except rent, revenue or profits' payable in respect of land used for agricultural purposes.
9. The provision of section 214 (1)(b)(iii) of the Act being relevant to the instant matter in hard is required deliberation. This provision, as observed by this Court in the cases of Mst. Khatija Begum and others v. Haji Gulzar Ahmed (PLD 1969 Karachi 141) and Muhammad Bashir v. M. A. Footwear (1985 CLC 460), imposes a restriction on the power of the Court to proceed upon an application of a perso n claiming on succession to be entitled to execute against a debtor a decree or order for payment of the debt, except on production by such person a certificate of succession granted under Part X of the Act and having the debt specified therein. It is, therefore, quite clear that before a Court could pass any order for execution of a decree on the application of a person claiming to be entitled to execute the decree against a debtor on the basis of succession, such person must produce before the Court a Succession Certificate issued in his favour in accordance with the provisions of the Act, specifying the debt therein.
10. As regard the question as to whether the provisions of section 214 (ibid) are applicable to the legal heirs of decree-holder , who file fresh execution application or are also applicable to such legal heirs, who are joined as parties when the decree-holder after filing execution application dies, has elaborately been discussed in aforementioned case-law and in this regard it has been observed by this Court in the case of Muhammad Bashir (supra) that there appears to be divergence of opinion between various High Courts of sub-continent, both prior to the year 1948 and thereafter , on the question of competency of L.Rs. of a deceased decree-holder to continue a pending execution application, without first obtaining a Succession Certificate as required in section 214(1)(b) of the Act. While all the Courts are unanimous in their opinion on the point that where the L.Rs. of a deceased decree holder make a fresh application for execution of a decree on the basis of succession, they must obtain a certificate of succession before filing the execution application before the Court, the High Courts of Calcutta, Andhra Pradesh, Patna and the Judicial Commissioner's Court at Peshawar in the cases of Muhammad Yousuf v. Abdul Rahim (ILR 26 Cal. 839); Kshetia Mohan v. Azibullah Mea (AIR 1920 Cal. 586); Akula Mabukhan v. Rajamma (AIR 1963 Andh. Pra. 69); Ragabir Narain Singh v. Raj Rajeshwati Prasad Singh (AIR 1957 Pat. 435) and Balmukhand v. Gobind Ram (AIR 1936 Pesh. 17) are further of the view that where the execution proceedings were commenced by the deceased decree-holder during his lifetime it is not necessary for his L.Rs. in order to continue with the same to obtain a certific ate of succession as required under section 214 of the Succesion Act. On the other hand, the High Courts of Bombay , Nagpur , Kutch, Kerala, Rajasthan and Travancore-Cochin in the cases of Abdul Majid v. Shamsherali (AIR 1940 Born. 285); Tejraj Rajoal v. Rampyari (AIR 1938 Nag. 528); Ranji Ladha v. Horisanji Versaiji (AIR 1955 Kutch 6); Sankaram Nari v Madhari Amee (AIR 1979 Ker. 231); Ganeshmal v. Anand Kanwar (AIR 1968 Raj. 273) and Thoma Chacko v. Koshi Varghes e (AIR 1956 Tray.- Cochin. 183) have expressed the view that even in a pending execution which was instituted by the deceased decree-holder during his lifetime, it is necessary for his L.Rs. to continue the same that they must obtain a succession certificate as required by section 214 of the Indian Succession Act. The Dacca High Court in the case of Jogendra Kishore v. Gajendra Kumar (PLD 1960 Dacca 617) has also followed the Calcutta view expressed in ILR 26 Cal. 839 and has disapproved the view expressed in AIR 1938 Nag. 528. The Court has further observed that the Courts which have held the view that execution proceedings could be continued by the L.Rs. of the deceased decree-holder without first obtaining the succession certificates as required under section 214 of the Act, have proceeded on the basis that this section of the Act is applicable only where a fresh execution application is filed by the person who claims on the basis of succession to execute the decree. The Courts which held the contrary view have, however , interpreted the expression "proceed" in section 214(1)(i)(b) as not only covering the fresh application by such person but also continuation of a pending application for execution. The latter view, in the opinion of the Court, appeared to be more in accord with the language of section 214(1)(i)(b) of the Act; hence the Court held that the provision of section 214 of the Act also applies on pending execution application.
11. It has been observed by this Court in the case of Ahmad-ul-Haq Siddiqui v. Bashir Ahmed (1987 CLC 2536 ) that "the idea behind this provision of section 214 appears to be that if one of the legal heirs gets money in the execution decree of a deceased Decree-holder , the possibility that such legal heirs may appropriate the Money to the exclusion of the other legal heirs, cannot be rules out. To prevent such abuse of the process of Court, the Legislature requires the legal heirs to obtain one of the certificates mentioned in the above section which can be granted to him by competent Court or authority , only after notice to and hearing of other legal heirs."
12. The word 'debt' is not defined in section 214 of the Act. In section 214(2) (ibid) word 'debt' includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes; hence, its ordinary dictionary meaning was resorted to by this Court in the case of Ahmad-ul-Haq Siddiqui (supra), as under: "In Black's Law Dictionary Vth Edn. one of the meanings of word "debt' amongst others is shown to be "a fixed and certain obligation to pay money or some other valuable thing or things, either in the present or in future. In a still more general sense, that which is due from one person to another , whether money , goods, or services." (Emphasis supplied)
13. In view of above facts and circumstances of the case, I am of the considered view that after the death of deceased decree holder No.2(iv). his legal heir(s) is required to produce requisite certificate in compliance of section 21A of the Act, as the share amount so deposited with the Nazir of this Court in the instant execution application in favour of said deceased decree-holder comes within the definiton of debt/obligation; hence C.M.A.
No. 1 16 of 2021 is dismissed, accordingly .