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Judgment
A decree had been passed by the Court of Sub Judge, Rajouri on 12.5.1981, whereby the defendant (judgment debtor) was directed by the
trial court to dose down the windows and remove the sun shades extended towards the land comprised under Khasra No. 1037. This decree was
obtained by the present petitioner, namely Thakurdawara Nihala Shah. The land which belonged to Thakurdawara Nihala Shah by operation of
law came to be vested in the State in terms of Section 4 of the Jammu and Kashmir ""Agrarian Reforms Act. Eventually, the ownership rights of the
land in terms of Section 8 were given to one Abdul Gafoor by virtue of mutation effected U/S 8 of the Agrarian Reforms Act. The land was
transferred to in the name of Abdul Gafoor in terms of Section 8 of the Agrarian Reforms act, as he was in possession thereof in Kharief 1971.
The mutation U/S 8 was effected on 2.11.1991. Application for execution of the decree was filed by the original decree holder i.e. Thakurdawara
Nihala Shah on 20.8.1994, which was resisted by the judgment debtor. The application was dismissed as not maintainable vide order dated:
25.4.1995. This order dated: 25.4.1995 has been challenged in this revision petition on various grounds.
Mr. Bakshi appearing for the petitioner submits that the original decree holder was within his rights to file the execution application, which was
maintainable in terms of Rule 16 0.20 of the CPC. Various judgments were cited by him in support of his contention including 1960 J and K LR
page 65, AIR 1995 SC page 376, AIR 1967 Punjab and Haryana page 268 and AIR 1965 Andhra Pradesh page 81. I have gone through all the
said judgments, but they are not relevant for the present controversy. In all the aforesaid cases cited by the learned counsel for the petitioner,
applications were made by the transferees and not the transferothers Rule 16 of 0.21 takes care of those person who on transfer/ assignment or by
operation of law, become successors to decree holders. A decree holder who gives up his rights in the property or whose rights are taken away by
operation of law, are not covered under O.XXI R.16. The present petitioner has no rights in the property in question because of the operation of
law. Under Section 4 of the J and K Agrarian Reforms Act, his rights in the land in question got extinguished and were vested in the State
Government. Therefore, any rights accruing to the petitioner with respect to the land including the decree got extinguished in so far as he was
concerned. By operation of law (specifically Section 8 of the J and K Agrarian Reforms Act), another person Abdul Gafoor became the owner of
the land, and therefore, all rights in land which belonged to Thakurdawara Nihala Shah before effecting of mutation U/S 8, were transferred in
favour of Abdul Gafoor, who had made an application in this revision for arraying him as a party respondent therein, which application has already
been allowed. Nobody appeared for him.
The aforesaid view gets credence from bare perusal of R. 10 of O.XXA, which reads, as under:
Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the, officer (if any) appointed in
this behalf, or if the decree has been sent under the provisions herein before contained to another Court then to such Court of to the proper officer
thereof.
The aforesaid Rule makes it clear that only a person who is holder of a decree can move an application for execution of the decree. If this Rule
is read with Rule 16 of O.XXI, it becomes clear that only a person, who on the relevant date came to be termed as holder of a decree, can move
an application for execution of the same.
In view of the aforesaid discussion, since the present petitioner was not at all holder of a decree when he made an application for execution, the
application was clearly not maintainable. However this will not debar the person, namely, Abdul Gafoor in whose favour the rights in the land have
been transferred by operation of law, from moving an application before the executing Court, provided it is otherwise maintainable in law.
For the aforesaid reasons, I do not find any merit in this revision, which is dismissed accordingly.