Vundavilli Venkataraju Vs. Kora Laxman Rao and ors. - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 1 failed to do so, money suit no. in the said case, it was clearly held that as the money became due to the legal heirs and successors not by succession, but by survivorship, section 312 of the indian succession act shall not be applicable. in my opinion, the facts and points of law in both the cases are distinctly separate.a.s. naidu, j. 1. this misc. appeal has been filed under order 43, rule 1(u) of the code of civil procedure inter alia challenging the judgment passed in money appeal no. 3/1 of 1985/87 by the addl. district judge, bargarti. learned lower appellate court set aside the judgment and decree passed in money suit no. 10 of 1983 and remanded the suit under order 23, rule 23, c.p.c. for fresh disposal after affording opportunity to the plaintiff to file succession certificate within a time as would be just and reasonable. for appreciating the case, some of the facts are necessary to be discussed.2. adimittedly, defendant no. 1 appellant took a loan of rs. 9,601.00 from the father of the plaintiff (r-1) and pro forma defendants 2 and 3 by executing a pro-note on february 19, 1980. on february 11, 1983 the father of the plaintiff and pro forma defendants 2 and 3, kora surna, expired leaving behind the plaintiff and pro-forma defendants 2 arid 3 as his sole survivors and legal heirs. thereafter a notice was issued calling upon defendant no. 1 to repay the loan. as defendant no. 1 failed to do so, money suit no. 10 of 1983 was filed in the court of the then subordinate judge, bargarh for realisation of the loan amount including interest thereon and for other ancillary reliefs.defendant no. 1 entered appearance and filed written statement. apart from challenging the maintainability of the suit, it was contended that the pro-note was not supported by any consideration and was a forged one. pro forma defendant no. 2 supported the plaintiff and pro forma defendant no. 3 did not contest the suit and remained ex parte.3. the learned trial court held that thepro-note ext. 1 was supported by consideration and it was validly executed by defendant no. 1 and that the suit was maintainable and decreed the suit. being aggrieved by the said decree, the defendantspreferred money appeal no. 3 of 1985 in thecourt of the district judge, sambalpurwhich was heard by the addl. district judge,bargarh. relying upon the provisions of section 214(1)(a) of the succession act, it was contended by defendant no. 1-appellant that inthe absence of a succession certificate, thesuit was not maintainable. in support of hiscontention, a decision of this court in thecase of aparti panda v. govinda sahu, air1984 ori 1, was relied upon. the learnedlower appellate court accepted the submissions advanced on behalf of defendant no.1-appellant and held that it was a fit casewhere the plaintiff should be given an opportunity to file succession certificate. onthe basis of such finding, the judgment anddecree of the trial court were set aside andthe suit was remanded to the court belowfor fresh disposal after affording an opportunity to the plaintiff to obtain successioncertificate and file the same in the suit. thesaid judgment as stated earlier is impugnedin this misc. appeal. 4. mr. pati, learned counsel for the appellant forcefully submitted that as the legal heirs were on record, no further succession certificate was necessary and that the learned lower appellate court acted illegally in not dismissing the appeal and confirming the judgment and decree passed in the suit. bringing to my notice a decision reported in air 1957 ori 100 (abhina sahu v. daitari sahu). mr. pati submitted that a succession certificate was not necessary for maintaining the money suit filed by the legal heirs and successors for realisation of a sum advanced by their predecessor. at the other hand, mr. lenka, learned counsel for respondent no. 1, strenuously argued that in the absence of a succession certificate the money suit was not maintainable and the lower appellate court had rightly set aside the judgment and decree passed by the trial court and remanded the matter. further, there being no error apparent on the face of the record, this court should be slow to interfere with the order of remand.5. for appreciating the inter se arguments, it would be prudent to quote the relevant portion of section 214 of the indian succession act. 1925 which reads as follows :--'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 effect 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. vii of 1827, and, if granted after the first day of may, 1889, having the debt specified therein. xx xx xx xx xx xx xx' 6. the relevant provisions quoted above leads to an irresistible conclusion that no court shall pass a decree in the absence of a succession certificate. in the decision in aparti panda case (air 1984 orissa 1) (supra) this court also came to the same conclusion and held that in absence of a succession certificate, the legal representatives of a decree-holder cannot continue the proceeding for realisation of a sum advanced by their predecessor-in-interest. in the decision in abhina sahu case (air 1957 ori 100) (supra) this court also took note of aparti panda case. on a close scrutiny of both the decisions, i find that in abhina sahu case (supra) the point for consideration was whether money advanced by a pro-note executed in favour of a karta of a family can be realised after his death by the members of his family as his legal representatives who have succeeded to his estate by survivorship. in the said case, it was clearly held that as the money became due to the legal heirs and successors not by succession, but by survivorship, section 312 of the indian succession act shall not be applicable. at the other hand, in the decision in aparti panda case, it was held that when a legal representative of a deceased creditor files an application for being substituted in the execution proceeding initiated by the creditor, the application is being filed on the condition 'being so entitled' and it attracts the operation of section 214(1)(b) of the indian succession act. it was held by this court that on the death of the original decree-holder in an execution proceeding, the legal representatives of the decree-holder cannot continue the decree without being required to produce a succession certificate. in my opinion, the facts and points of law in both the cases are distinctly separate.7. be that as it may, it appears that the question of maintainability was, in fact, raised in the suit and the learned trial court has answered the same. i also find that all the materials necessary for effectual adjudication of inter se disputes are availableon record. the only point which needs to be determined is as to whether a money suit for recovery of a debt can be filed by the legal heirs and successors as survivors of the deceased, or for maintaining such a suit succession certificate would be necessary. parties were aware of the rival disputes and adduced evidence in the case. thus, according to me, this is a case where the provisions of order 41, rule 23. c.p.c. shall be applicable and not order 41, rule 23, c.p.c. shall be applicable and not order 41, rule 23, c.p.c. inasmuch as the evidence on record was sufficient to enable the appellate court to pronounce the judgment. admittedly the pro-note was executed in the year 1980 and more than twenty-two years have elapsed in the meanwhile. remanding the case once again to the trial court for a de novo trial will not be in the interest of any of the parties. power of remand should not be utilised as a matter of course and the same must be avoided when the appellate court can make necessary enquiry which would save both time and expenses of litigation to some extent. this view of mine also finds support from a decision of this court reported in (1994) 78 cut lt 696 : (air 1993 ori 14) (udayanath pani v. s.t.a., orissa).8. needless to say, a succession certificate is a public document and the same if at all found to be necessary by any of the parties, can be adduced as an additional evidence in course of hearing of the appeal itself. thus, setting aside the judgment and decree of the court below and remanding the matter for a de novo trial will not meet the ends of justice. for the aforesaid reasons, i have no hesitation to set aside the judgment passed by the lower appellate court in money appeal no. 3/1 of 1985/87.9. in the result, the misc. appeal is allowed. the impugned judgment of the learned additional district judge, bargarh in money appeal no. 3/1 of 1985/87 is set aside. the matter is remanded to the learned additional district judge, bargarh, with a direction to rehear the appeal on merits and dispose of the same in accordance with law. parties to bear their own costs.