1. The appellant appealed to the First Class Subordinate Judge for the disposal of an application for execution of a decree obtained by him so long ago as the 26th of August 1895. The application for execution was made on the 25th of June 1896. The mode in which the assistance of the Court was sought was by sale of the right, title, and interest of the mortgagor in the mortgaged property which was the subject of the suit. On the 8th of July 1898 an order for sale having been passed the proceedings were transferred to the Collector for execution, under Section 320 of the Code, and by him to the Talukdari Settlement Officer upon whom the powers of the Collector under that section had been conferred. The judgment-debtor was a Talukdar having a small share in a Talukdari estate, and it was in order to have that share realised by sale that the application had been made for execution.
2. In the month of September 1905, under the provisions of the Gujarat Talukdars Act (Bombay Act VI of 1888) Section 29B, a Notification was issued stating that the whole of the Talukdari estate had been taken into the management of the Talukdari Settlement Officer and that persons having claims upon Talukdars or their property should submit the same in writing to the Talukdari Settlement Officer. Previous to the date of that Notification the Talukdari Settlement Officer had taken the estate into his management under the provisions of Section 28(2) of the Act. Before six months had expired from the date of the Notification under Section 29B, the judgment-debtor died. The date of his death was 21st of January 1907. Between the date of the Notification and the date of the death of the judgment-debtor two applications were made to the Court by the judgment-creditor that the execution of the decree might be carried out, and those applications were forwarded by the Court to the Talukdari Settlement Officer with endorsements directing that the execution should proceed.
3. On the 3rd of July 1907, the plaintiff applied to the Court stating that the present respondent was the legal representative of the deceased judgment-debtor and praying that execution might be proceeded with against her. That application was forwarded by the Court to the Talukdari Settlement Officer and was filed by him in the file of documents relating to the execution of the decree in his office.
4. On the 5th of July 1907, the plaintiff applied to the Talukdari Settlement Officer to have the claim registered under Section 29B of the Act, but the Talukdari Settlement Officer replied the following day that the claim could not be registered as it was not made within six months of the publication of the notice under Section 29B. Having come to this conclusion that Officer returned the whole of the documents filed by him to the Subordinate Judge stating that under the provisions of Section 29B the claim of the judgment-creditor must be deemed to have been satisfied, and that, therefore, nothing more could be done under the execution proceeding.
5. The plaintiff objecting to that decision of the Talukdari Settlement Officer, complained to the Subordinate Judge.
6. The Subordinate Judge has held that the plaintiff cannot succeed in his application for two reasons: first, because the application cannot be proceeded with as the judgment-debtor is dead; and secondly, because no certificate under Section 29E of the Talukdars Act has been filed.
7. As regards the first point, the conclusion arrived at by the Subordinate Judge is stated by him to be based upon the authority of the case reported in Hirachand Harjivandas v. Kasturchand Kasidas 18 B. 224. When that case is examined it will be found that it is no authority for the conclusion arrived at by the learned Judge. It decides that Sections 361 to 372, Civil Procedure Code, do not relate to proceedings in execution, and that, therefore, it is not necessary that the records of the suit should be amended on the death of the defendant after decree, but it also shows that where the judgment-debtor dies after decree the proper course is to apply under Section 234 to the Court which passed the decree for liberty to continue the execution proceedings against the legal representative of the judgment-debtor. This is exactly the course which had been followed by the plaintiff in the present case by his application of the 3rd July 1907.
8. No authority has been cited to us in support of the contention that execution proceeding's already commenced cannot be continued after the death of the judgment-debtor by substitution of the name of the legal representative in place of that of the judgment-debtor in the application for execution.
9. We think, therefore, that there is no objection to the continuance of the execution proceeding against the present respondent without fresh application under Section 235.
10. The second point upon which the Subordinate Judge came to a decision adverse to the appellant is the point based upon the fact that no certificate of the managing officer, such as is contemplated under Section 29E of the Talukdars Act, has been filed in the Court.
11. This section provides that before execution can be proceeded with, one of two things must have happened; either a certificate from the managing officer that the claim has been duly submitted must be filed, or one month must have elapsed from the date of receipt by the managing officer of the written application for such certificate accompanied by a certified copy of the decree.
12. One of the points which was made on behalf of the respondent in supporting the judgment of the lower Court was that the managing officer mentioned in Section 29E is a different officer from the Talukdari Settlement Officer who has the charge of the proceedings in execution and, therefore, a claim which, came to his knowledge as the officer charged with the execution of the decree would not be within his knowledge as managing officer. The 'managing officer' is, however, merely a compendious term used in the Act for 'the Talukdari Settlement Officer or any other Officer appointed by Government to take charge of the Talukdar's estate and keep the same in his management' referred to in Section 28 of the Act, and where the officer who takes charge of the estate and keeps the same in his management is the Talukdari Settlement Officer, the 'managing Officer' is merely a synonym for 'Talukdari Settlement Officer.'
13. It was next contended on behalf of the respondent that Section 29E gives to the officer, whether he be the managing officer as distinct from the Talukdari Settlement Officer, or to the Talukdari Settlement Officer the sole right of deciding whether or not a claim has been duly submitted in reply to a notice issued under Section 29B.
14. As the result of the non-submission of the claim would be a statutory discharge under Section 29B (3) of the claim of the decree-holder, if such a power were put into the hands of the officer whose duty it is to manage the estate and free it from its liabilities, it would have the effect of making that officer a judge in his own cause. This is a result which can hardly have been intended by the legislature, and we think therefore, that Section 29E must mean that before execution of a decree can be proceeded with the Court must be satisfied that the decree-claim has been duly submitted. If the officer certifies that it has been duly submitted there is an end of the matter. If, however, he does not certify that it has been duly submitted the Court must wait for one month from the date of the receipt by the officer of an application for a certificate, and upon being satisfied that a claim has been duly submitted in accordance with the provisions of Section 29B, it may then proceed with the execution. The section cannot mean that a decree-holder without making any attempt to submit a claim may apply to the managing officer for a certificate that he has submitted a claim and after waiting a month may go to Court and demand execution of his decree. The construction which we put upon the section is one which attributes to the legislature both fairness and common sense.
15. The next question which we will consider is, whether in the present case a claim has been submitted to the Talukdari Settlement Officer in accordance with the provisions of Section 29B. That section provides that the officer may call upon persons having claims to submit the same in writing to him within six months from the date of the publication of notice. The group of sections to which it belongs provides machinery for the ascertainment of the liabilities of Talukdars whose estates are taken under management.
16. It is not contended that the officer has issued any requisition under Section 29C, therefore, all that the plaintiff must show is that he has within six months submitted his claim in writing.
17. Now we know that the plaintiff's claim for execution of the decree has actually been before the Talukdari Settlement Officer from the month of July 1896; that is to say, for a period of thirteen years, and we know that two written applications were made by the plaintiff within six months of the data of the issue of the Notification under Section 29B, and were in the ordinary course of execution proceedings forwarded by the Subordinate Judge to the Talukdari Settlement Officer. It is contended on behalf of the plaintiff that either of those applications is a written notice of the claim.
18. No form of Notification of claim is prescribed by the Act, and as the only object aimed at by the legislature is that the officer should be informed of claims against the estate there is no reason why any written notice of claim, which is submitted to the managing officer, should not be held to comply with the requirements of the section.
19. In our opinion the applications, dated the 6th October 1906 and the 22nd of December 1906, are sufficient notices in writing of the plaintiff's claim.
20. The plaintiff, although he has thus satisfied us that he has submitted notice in writing of his claim incompliance with the provisions of Section 29B. has not been able to show us that he has obtained a certificate from the officer or has applied for one more than a month before the date of his application to the Court. We think that we ought to give him an opportunity, now, of applying for a certificate from the managing officer, and we think that having satisfied us that a claim has been made under Section 29B, he will be entitled to receive a certificate from that officer. If, however, he does not receive it we direct the Subordinate Judge, after the expiry of one month from the date of the application for certificate, to proceed with the execution of the decree.
21. We reverse the order of the lower Court and send back the case for disposal in accordance with this judgment.
22. We think there ought to be no costs of this appeal as the appellant has not produced the certificate and the respondent has failed in his contentions.
23. The other costs will be costs on the execution.