Kultar Singh and ors. vs Nimbo and Ors.

J. V. Gupta, J.

This revision petition is directed against the order of the executing Court dated June 10, 1987 whereby the application filed on behalf of the petitioners for substituting them as the decreeholders was dismissed.

Kultar Singh and others, petitioners, filed the application for substituting them in place of Hari Singh and others as the decreeholders. According to them, they had become the owners of the suit land by way of the civil Court decree dated March 5, 1987, passed by the Subordinate Judge, Second Class, Kaithal, in Civil Suit No. 181 of 1987 Inder Singh etc. v. Kultar Singh etc. The said application was contested on behalf of the judgmentdebtors, Smt. Nimbo and others. According to them, the petitioner had no right, title or interest in the disputed land nor there could be any exchange of the land as alleged by them. The learned executing Court took the view that there was no assignment of the decree as required under Order XXI rule 16, Code of Civil Procedure (hereinafter called the Code), as the case of the petitioners was that they had become the owners of the suit land by way of exchange. On this basis, according to the learned executing Court, the petitioners could not be substituted as the decree. holders.

The learned counsel for the petitioners cited Zila Singh v. Hazari, AIR 1979 Supreme Court 1066 wherein it was held that even if the case does not fall within the purview of Order XXI rule 16 of the Code, the provisions of section 146 of the Code could be invoked in that regard. On the other hand the learned counsel for the judgment debtors submitted that the decree under which the petitioners claimed to have become the owners of the suit land did not amount to a transfer because the decree dated March 5, 1987, was passed in favour of the plaintiffs Inder Singh and others and not in favour of Kultar Singh and others.

After hearing the learned counsel for the parties, I am of the considered opinion that the petitioners were entitled to be substituted as the decree holders in view of the provisions of section 146 of the Code, which reads as under :

"Proceedings by or against representatives Save as otherwise provided by this Code or by any law for 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".

In Zila Singh''s case (supra), it was observed :

"If the deed evidenced transfer of decree by assignment then Order XXI Rule 16 would be attracted but if, as it appears, there is no transfer of decree by assignment, the lands having been sold by the decreeholder after perfecting his title and purchased by the present appellants they would be persons claiming under the original preemptor decreeholder Neki and if Neki could have made an application for execution of the decree as decreeholder, the present appellants as purchasers of land from Neki would certainly be claiming under Neki and, therefore, their Application for execution would certainly be maintainable under section 146".

In the present case, the rights in the suit land were transferred in favour of the petitioners by Inder Singh and Hari Singh by virtue of the decree dated March 5, 1987. That being so, no objection could be raised on behalf of the judgmentdebtors that the petitioners were not entitled to be substituted as the decreeholders.

Apart from the above, even in the application filed on behalf of Hari Singh and Inder Singh, decreeholders, for possession of suit land, the judgment debtors filed objections that the applicants were not the owners of the disputed land in view of the decree dated March 5, 1987. This objection prevailed with the executing Court and vide order dated June 15, 1987, the application filed by the decreeholders Hari Singh and Inder Singh for possession was dismissed. Thus, the executing Court has passed two contradictory orders in the same proceedings. If Hari Singh and Inder Singh who were the original decreeholders, have ceased to be the owners of the suit owners of land because they had given the suit land in exchange of Kultar Singh and others, then in that situation, the latter were entitled to be substituted for Hari Singh and Inder Singh, decreeholders, under section 146 of the Code and were entitled to execute the decree as such.

Consequently, this revision petition succeeds and is allowed. The impugned order is set aside. The executing Court will now proceed with the execution in accordance with law after substituting the petitioners for the original decreeholders. The records of the case be sent back forthwith the parties have been directed to appear in the executing Court on 7th January, 1988.