2020 C L C 128
[Chief Court Gilgit-Baltistan]
Before Malik Haq Nawaz and Ali Baig, JJ
Mst. KHALASA BEGUM----Appellant
Versus
SAMAR ABBAS through Next Friend----Respondent
C.F.A. No.53 of 2018, decided on 17th June, 2019.
Succession Act (XXXIX of 1925)---
----S. 372---Civil Procedure Code (V of 1908), O. XXI, R. 23 & Ss.2(2)(14)---Succession certificate---Execution petition---Objection petition---Execution petition was filed for implementation of succession certificate wherein objection application was moved but same was dismissed---Contention of petitioner was that succession certificate was not a decree and same was not executable---Validity---Succession certificate did not fall within the ambit of decree and it merely declared that legal heir of the deceased was entitled to recover the amount mentioned in the said certificate---Succession certificate was not capable of being executed as a decree or order of the Court---Impugned order passed by the Court below was set aside and execution petition was dismissed by allowing objection petition---Appeal was allowed, in circumstances.
AIR 1986 Karnataka 167 and 1991 CLC Pesh. Note 199 ref.
Islam-ud-Din for Appellant/Petitioner.
Ghulam Haider for Respondent.
Date of hearing: 10th June, 2019.
JUDGMENT
ALI BAIG, J.----This Civil 1st appeal is directed against the impugned judgment/order dated 06-11-2018 passed by the learned District Judge/Guardian Judge Gilgit in execution petition No.06/2017, whereby objection petition of appellant/petitioner has been dismissed by the learned District Judge/Guardian Judge Gilgit.
2. Succinctly facts leading to the filing of this civil 1st appeal are that husband of the present appellant/petitioner namely Javed Akhtar Baig had gone to his account, therefore, the present appellant-namely Khasala Begum had applied for grant of succession certificate in the Court of the District Judge/Guardian Judge Gilgit, on 02-2-2013.
3. During pendency of the above said application before the District Judge/Guardian Judge Gilgit present respondent who was adopted son of the deceased Javed Akhtar Baig filed objections and pendency of said objections/petition the parties amicably settled the dispute through conciliation and accordingly succession certificate was granted in favour of the present appellant/petitioner by the learned Guardian Judge Gilgit vide order dated 16-4-2013 in terms of compromise/conciliation deed. Thereafter, the present respondent through his next friend filed execution petition for execution of succession certificate in the Court of District Judge/Guardian Judge Gilgit. The present appellant filed objection petition under Order XXI, Rule 23, C.P.C. which was dismissed by the learned District Judge/Guardian Judge Gilgit vide the impugned order dated 06-11-2018, hence this Civil 1st appeal.
4. The learned counsel appearing on behalf of the appellant contended that the impugned order dated 06-11-2018 passed by the District Judge/Guardian Judge Gilgit is contrary to law and facts on the record of the case, as such the impugned judgment/order passed by the learned District Judge/Guardian Judge Gilgit is not maintainable and liable to be set aside. The learned counsel for the appellant further contended that late Javed Akhtar Baig has died issueless, petitioner is widow of the late Javed Akhtar Baig and the learned Guardian Judge Gilgit has issued succession certificate in the name of the present appellant on 16-4-2013 and the present respondent is neither decree-holder nor any succession certificate has been issued in his favour, hence the execution petition was not maintainable and the learned Guardian Judge Gilgit has wrongly entertained the execution petition of the present respondent. Concluding his arguments the learned counsel for the appellant contended that the succession certificate is not a decree in terms of section 2(2) of the Civil Procedure Code, hence the same is not executable under law and execution petition filed by the present respondent is not maintainable.
5. On the other hand the learned counsel for the respondent defended the impugned order passed by the learned Guardian Judge Gilgit by contending that the succession certificate was granted in favour of the present appellant in terms of compromise/conciliation deed effected between the parties, therefore, the execution petition was maintainable and the learned Executing Court/Guardian Judge has rightly dismissed the objection petition of the present appellant vide impugned judgment under appeal which may be maintained in the interest of justice.
6. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.
7. Admittedly, the respondent has filed execution petition before the learned Guardian Judge Gilgit deeming the succession certificate as decree and decree has been defined in the provisions of section 2(2), C.P.C. So, we would like to re-produce the above said provisions of C.P.C. to determine whether the succession certificate falls within the ambit of decree or not as under:-
Section 2(2), C.P.C. "decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint (the determination of any question within sections 144, an order under Rules 60, 98, 99, 101 or 103 of Order XXI) but shall not include--"
(a) Any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
8. From bare reading of the aforesaid provisions of law it transpires that the succession certificate granted by the learned District Judge/Guardian Judge Gilgit in favour of the present appellant does not fall within the ambit of decree as succession certificate granted by the Court below is merely to declare that the legal heir of the deceased is entitled to recover the amount mentioned in the said certificate and is itself not a decree nor an order as defined in section 2(2) and section 2(14) respectively, therefore, succession certificate is not capable of being executed as a decree or order of the Court under the provisions of Order XXI of C.P.C. The present respondent may recover the amount only by filing a suit in the Civil Court. Our view is fortified by the case Laws AIR 1986 Karnataka 167 and 1991 CLC Peshawar Note 199.
9. Moreover, even name of the respondent is not appearing in the succession certificate issued by the Guardian Judge Gilgit in favour of the appellant, thus, the respondent can file a fresh application in the Court of District Judge/Guardian Judge Gilgit under the provisions of section 378 of the Succession Act, 1925 for amendment in the said succession certificate if so desires, who will decide the same in accordance with law, keeping in view the relevant provisions relating to issuance of succession certificate.
10. For what has been discussed above, this appeal is accepted. Consequently, the impugned order dated 06-11-2018 passed by the District Judge/Guardian Judge Gilgit is set aside and execution petition filed by the present respondent in the Court of District Judge/Guardian Judge Gilgit is dismissed by allowing objection petition of the present appellant/petitioner. File.
ZC/109/GB
Appeal allowed.
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