Mohamed Anwar, J.:—
Heard.
2. The petitioner is stated to be the transferee of an immovable property which is subject of decree passed in O.S No. 287/81 of the Trial Court in favour of Decree-holder named Jayamma and against two respondents herein who are defendants in the said suit. That suit was filed against them by Jayamma for the relief of declaration that she was the absolute owner of the suit property and for delivery of the possession thereof by respondents-defendants. By consent of parties the said suit came to be decreed as prayed, on 16.4.1987 Subsequently, on 26.6.1989 the Decree-Holder Jayamma is stated to have alienated the suit property to petitioner by a registered sale deed. The petitioner is none else than her brother. Thereafter, the Decree-Holder had made execution petition in E.P No. 162/92 before the court-below for execution of the decree, its execution was opposed by respondents-JDrs. on the ground of the suit property having been transferred by her (DHr.) to her brother under the said sale deed dated 26.6.1989 Then that Ex. Petition 162/92 was withdrawn by her.
3. Thereafter, the present petitioner who is the said transferee took out execution thereof in Ex. Petition 319/92 in the court-below. That execution petitioner was opposed by respondents JDrs. on the ground that petitioner had no locus standi to seek execution of the decree, in that, he was neither party to the suit nor a party to the decree and also that the present petition was not maintainable in view of the Dhr. having got her said earlier execution petition dismissed by filing a memo. Upholding both these grounds of objection the learned Judge of the court-below has dismissed the Execution petition No. 319/92 of the petitioner as not maintainable, by its impugned order dated 6.9.1992
4. Learned Counsel for petitioner Mr. Papi Reddy maintained that the petitioner as a transferee under the said original decree holder was entitled to seek execution of the said decree by virtue of Section 146 read with explanation appended to Order 21, Rule 16 C.P.C He, therefore, contended that the impugned order of the court-below is, therefore, illegal as it has failed to exercise jurisdiction vested with it under the said provisions.
5. The aforementioned contention canvassed for the petitioner has remained unopposed by the other side.
6. On examination of the material provisions of Section 146 and Order 21, Rule 16 C.P.C, I find sufficient legal force in the contention so canvassed by the Learned Counsel for petitioner
7. Section 146 C.P.C reads:
“Section 146. Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or 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.”
The material portion of Order 21, Rule 16 C.P.C reads:
“16. 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 were 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 transfer or and the judgment-debtor, and the decree shall not be executed until the Court had heard their objection (if any) to its execution:
Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transfer or and the judgment-debtor, and the decree shall not be executed until-the Court has heard their objection (if any) to its execution:
Provided also that……Explanation:— Nothing in this rule shall affect the provisions of Section 146, and a transferee, of rights in the property, which is the subject matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule.”
8. A plain reading of Section 146 read with explanation to Order 21, Rule 16 C.P.C makes the legal position crystal dear that the petitioner who is a transferee of the property which is the subject matter of a decree, in execution is entitled to apply for execution of the decree without a separate assignment thereof since he claims to have lawfully acquired the property through the Dhr. Jayamma who was its rightful owner. Therefore, evidently, there was no substance in the aforesaid objection raised by the Jdr. to the execution of the said decree by the petitioner. In that view of the matter, the impugned order of the learned Judge of the execution court is patently illegal and unsustainable in law. The Court-below has failed to consider the aforesaid material provisions in C.P.C and thereby failed to exercise the jurisdiction that was vested in it by virtue thereof. As such the revision petition deserves to be allowed.
9. For the reasons aforesaid, the revision is allowed. The impugned order dated 6.9.1993 of the court-below is setaside and Ex.case No. 319/92 is restored to its file with a direction to proceed in accordance with law.
The petitioner is at liberty to take out notice to the Dhr. contemplated under the first proviso to Order 21, Rule 16 C.P.C in the said Ex. case No. 319/92.
Parties to bear their own costs.
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