1. ' The abovenoted applications are filed by one Khurshid Ahmed, claiming to be one of the legal heirs of the deceased plaintiff decree-holder Muhammad Bashir. These two applications were filed on 21st February, 1984, with the prayer to restore execution application instituted by the deceased decree-holder which was dismissed for non-prosecution on 24-8-1983 and permit the said legal heir to continue the same. At the hearing of these applications, a preliminary objection was raised by the learned counsel for the judgment-debtor that the legal heirs of the deceased decree-holder can neither apply for restoration of the execution application nor can he be allowed to continue with the same, without first obtaining a succession certificate in this regard, as required under section 214 of the Succession Act, 1925.The learned counsel for the L.Rs. of the deceased decree- holder on the other hand contended that the execution application against the judgment-debtor having been filed by the deceased decree-holder himself during his lifetime, the L.Rs. are entitled to continue the same without first obtaining a succession certificate. The learned counsel for the L.Rs. of the deceased decree-holder has relied on section 146 and Order XXI, rule 16, of the Civil Procedure Code in support of his contention. In order to appreciate the respective contentions of the learned counsel for the parties it is necessary to examine here in some details the provisions of section 214 of the Succession Act, 1925, section 146, C.P.C. and Order XXI, rule 16, C.P.C. I will, however, first examine the provisions of section 146 and Order XXI, rule 16, C.P.C. relied by the learned counsel for the L.Rs. of the deceased decree-holder. They read as under:- "Section 146.-- Proceedings by or againsi representatives. Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or the application made by or against any person then the proceeding may be taken or the application may be made by or against any person claiming under him ' Order XXI, rule 16.-- Application for execution by transferee of decree--Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be- executed in the same manner and subject to the same conditions as if the application was made by such decree-holder: ' Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution: ' Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the other."
2. 'A reading of the above provisions will show that they are pro cedural in nature and are designed to regulate the proceedings generally before the civil Court. Section 146, C. P. C. makes it permissible for a party claiming under another party to make any application or to take any proceeding which that other party could file or take; but this right is subject to other provisions of the Code of Civil Procedure or any other law for the time being enforced applicable in this behalf. It, therefore, follows, that where, under any other law for the time being enforced, the right to apply or to take proceedings by such party is restricted then the right available under section 146, C. P. C. could be exercised only subject to such limitation. Similarly, Order XXI, rule 16, C. P. C. provides that where a person who is transferee by assignment of a decree or by operation of law, the transferree may apply for execution of decree to the Court which passed it and the decree may be executed in the same manner and subject to the same condition as if, the application was made by such decree- holder. This provision again is procedural in nature and is to be read with section 146, C. P. C. or with any other provision applicable in this behalf contained in any law for the time being enforced. Both Order XXI, rule 16 and section 146, C. P. C. are, therefore, provisions of a general law which governs the procedure generally before the Courts. The Succession Act, on the other hand is a special law which deals with only intestate and testamentary succession in Pakistan. It is a settled rule that where two provisions of law, one contained in the general law and the other in a special law, are applicable on the same subject, then to the extent of inconsistency between the two, the provisions contained in the general law must give way to the provisions of special law. Therefore, if the Succession Act, places any limitation on the right of a party in matter of moving a civil Court execution of a decree on the basis of succession, then such a right can be exercised under the provisions of C.P.0 subject to such limitations only. I will now examine the provisions of section 214 of the Succession Act to find out if it really affected the right of a party, claiming on the basis of succession to execute a decree passed by the civil Court. The section reads as under:- "214.Proof of representative title a condition precedent to recovery through the Courts of debts from deceased person.- -(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 31 or section 32 of the Administrator-General's 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) a certificate granted under the Succession Certificate Act, 1889; Or
(v) a certificate granted under Bombay Regulation No.VIII of 1927, 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 exept rent, revenue or profit payable in respect of land used for agricultural purposes."
3. ' I will examine here only the provision of section 214 (i)(b) of the Act which is relevant. This provision imposes a restriction on the power of the Court to proceed upon an application of a person calirning on succession to be entitled to execute against a debtor a decree or prder for payment of the debt, except on production by such person a certificate of succession granted under Part X 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 Succession Act, specifying the debt therein. This, however, does not mean that where such certificate is not produced the Court should dismiss the execution filed by such person. In such a case the Court should adjourn hearing of case and allow reasonable opportunity to the party to produce succession certificate.
4. ' I may mention here 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 comptency 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)(6) of the Succession 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, Gujarat, Andhra Pradesh, Patna and the Judicial Commissioner's Court at Peshawar 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 certificate of succession as required under section 214 of the Succession Act. See Balmukhand v. Gobind Ram AIR 1936 Pesh. 17; Muhammad Yousuf v. Abdur Rahim I L R 26 Cal. 839; Kshetia Mohan v. Azibullah Mea AIR 1920 Cal. 580; Akula Mabukhan v. Rajamma AIR 1963 Andh. Pra.
5. 69; Ragabir Narain Singh v. Raj Rajeshwati Prasad Singh AIR 1957 Pat.
435. The High Courts of Bombay, Nagpur, Kutch Kerala, Rajistan and Trv. Cochin, on the other hand 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. See Abdul Majid v. Shamsherali AIR 1940 Bom. 285; Tejraj Rajmal v. Rampyari AIR 1938 Nag. 528; Ganeshmal v. Anand Kanwar AIR 1968 Raj. 273; Sankaram Nari v. Madhari Amee AIR 1979 Ker. 231; T. Chacko v.
6. K. Varghese AIR 1956 Tray.-Co. 183 and Ranji Ladha v. Horisanji Versaiji 1955 Kutch 6. 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 I L R Cal. 835 and has dis approved the view express in AIR 1938 Nag.
7. 528.
8. ' 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 Succession Act, have proceeded on the basis that this section by the Succession 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(i)(b) as not only covering the fresh application by such person but also continua tion of a pending application for execution. The latter view, in my humble opinion, appears to be more in accord with the language of section 214 (i)(b) of the Act. I have carefully gone through the provision of section 214 of Succession Act and I am unable to find any distinction in the language of that section which could justify exclusion of pending execution application from the purview of this section. Can a pending execution application be taken to its logical end upon the death o decree-holder if his L.Rs. are not brought on record in the case? In my opinion the answer to this question has to be in the negative, for, after the death of a decree- holder the Court cannot dispose of the execution application finally on merits, unless somebody is there before the Court to represent the interest of the deceased decree-holder. In D order to fully understand the import of the expression "proceed upon an application of the person...."in section 214 (i) (b) of the Succession Act, it has to be found out whether the proceedings in an execution case after the death of decree-holder and substitution of his L.Rs. are in fact proceeding by the deceased decree-holder or by his L.Rs. In my view as soon as the heirs/L.Rs.of a deceased decree- holder are substituted on record in a pending execution case; the proceedings from that point onward both in fact and in law, are to be considered at the instance of such substituted party. That being so, the provisions of section 219 of the Succession Act are immediately attracted and the Court cannot pass any order in the case without production of a succession certificate as required under the law by such substituted party.
9. ' A further question may, however, arise that whether the provisions of section 214(i)(b) of the Succession Act are also applicable to an application by legal representatives whereby they only seek sub stitution of their names in a pending execution application in place of deceased decree- holder, or where they only apply for restoration of an execution for non-prosecution on account of death, of the decree-holder. In my humble opinion, such an application which only seeks substitution of the name of the legal representatives of a deceased decree-holder on the basis of succession or restoration of an execution for non-prosecution is not hit by section 214 of the Act as in making such an application the legal representatives, E are only attempting to keep the proceedings alive. However, as soon as the names of the legal representatives are brought on record/ substituted in the case, in place of the deceased decree-holder or the restoration application is allowed and the case is restored to its file, and request is made to the Court to proceed further with the execution the bar contained in section 214 of the Act is immediately attracted and the Court shall insist before passing any further order in that behalf for production of a certificate of succession as required in section 214 of the Act.
10. In view of above discussion I am of the view that the application for restoration moved by one of the L.Rs, of deceased decree-holder is maintainable in law. However, on merits I find that no plausible reason has been disclosed for restoration of the execution application. The execution application was dismissed for non-prosecution on 24-8-1983 while the present application has been moved by one of the L.Rs. of the deceased decree-holder namely Khurshid Ahmad on 21-2- 1984. It is stated in the affidavit filed in support of the application that the decree-holder died on or about 11-11-1981 leaving behind several legal heirs. It is further stated that on 27-1-1983 Salim Ahmed brother of the deceased decree-holder filed an application for himself and as attorney of Mst.
11. Raffia Begum to be made a party in the execution application in which the present applicant was also shown as one of the L.Rs. This application filed by Salim Ahmed was not pursued and as a result thereof it was dismissed for default on 24-8-1983 and so also the execution application. It is further stated in the affidavit that the present applicant had no knowledge of the execution proceedings and it was only in January 1984, that he came to know that Salim Ahmed had failed to pursue the proceedings and the same has been dismissed. These reasons given in the affidavit are hardly sufficient for restoration of the case. The applicant as an heir of the deceased decree- holder was required to pursue his interest in the execution application diligently which he admittedly failed to do. I am, therefore, not satisfied with the grounds urged by the applicant for restoration of execution case and accordingly dismiss the same. As a result of dismissal of the restoration application the application under Order XXI, rule 16, C.P.C. filed by the applicant is also dismissed. I may mentioned here that the application under Order XXI, rule 16, C. P. C. filed by the L.Rs. of deceased decree-holder for permission to continue the execution proceeding could not be granted otherwise, as before making such an application the applicant has to show that he has obtained a succession certificate as required under section 214 of the Succession Act. I may, however, clarify the dismissal of these applications will be no bar to the filing of any fresh execution application by the legal representatives of the deceased upon obtaining a certificate of Succession as required under section 214 0 the succession Act, provided such right is not otherwise defeated in the meantime under any other provision of law.