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Judgment
Venkataswami, J.—This Civil Revision Petition is filed under S.115 of the CPC challenging an order of the learned Subordinate Judge,
Erode, passed in E.P. No. 119 of 1982 in O.S. No. 132 of 1968, dated 21.7.1984. Brief facts concerning the case are the following:
One Sengoda Gounder and Muthusamy alias Sungini entered into an agreement to purchase the suit properties from defendants 1 to 4 in O.S. No.
132 of 1968, on the file of the Sub Court, Erode, on 9.1.1968. It is common ground that Sengoda Gounder was in possession of the suit
properties, namely, four acres of land with some superstructure in a portion of the land as a tenant. On account of some difference of opinion, the
said Muthusami who was defendant No. 5 in the suit (5th respondent herein) refused to cooperate with his partner Sengoda Gounder in enforcing
the agreement of sale, Consequently, Sengoda Gounder filed O.S. No. 132 of 1968, on the file of the Sub Court, Erode, for specific performance
of the agreement. While the suit was pending, defendants 1 to 4, owners of the property, have sold the property to defendants 6 and 7 in the suit.
Ultimately, the suit filed by Sengoda Gounder for specific performance was decreed, directing the plaintiff (Sengoda Gounder), to deposit a sum of
Rs. 36,000/- (balance of sale consideration) within six months from 23.9.1971. It appears that Sengoda Gounder could not raise the required
money to comply with the condition. Hence he entered into an agreement with the first respondent herein on 19.11.1971 to sell two acres, i.e. half
portion of the suit property within a month after getting the sale deed pursuant to the decree in O.S. No. 132 of 1968 from defendants 1 to 4. In
the agreement, namely, Ex.A-1, it is stated that after receiving the amount for depositing the same into Court, the 1st respondent herein was put in
possession of the land which was in the possession of Sengoda Gounder, Sengoda Gounder, after executing a will on 28.12.1972, died on
19.1.1973. Defendants 1 to 4 in O.S. No. 132 of 1968 (owners of the suit property) filed Appeal No. 739 of 1971, on the file of this Court,
against the judgment and decree in O.S. No. 132 of 1968. That appeal was dismissed by this Court on 29.11.1978. Thereafter, the legal
representatives of the deceased Sengoda Gounder did not take any steps to execute the decree for the specific performance by getting a sale deed
executed by defendants 1 to 4 in that suit. Therefore, the first respondent herein filed E.P. No. 119 of 1982, claiming that he has a right to execute
the decree by virtue of Ex.A-1 agreement. This Execution Petition was opposed by the legal representatives of the deceased Sengoda Gounder on
the ground that Ex.A-1 agreement was not true and it was a forged one. The first respondent herein (petitioner in E.P. No. 119 of 1982) also
pressed into service Ex.A-3, Will, executed by Sengoda Gounder inasmuch as there was a clause in the registered will admitting the execution of
the agreement Ex.A-1 and directing his wife to honour the commitment in Ex.A-1 agreement. The legal representatives of the deceased Sengoda
Gounder who are respondents 8 to 12 also challenged the legality and validity of the Will. It may be mentioned that Muthusami alias Sungini who is
entitled to the other half of the suit property did not object to the execution petition being filed by the 1st respondent herein. Likewise, the
purchasers, pending suit, and also the owners of the suit property, did not object to the 1st respondent herein filing E.P. No. 119 of 1982. It may
also be mentioned that the 1st defendant in the suit died pending E.P. No. 119 of 1982 and her legal representatives were brought on record
subsequently. The executing Court, on the basis of the recitals found in Ex.A-1 and also in the light of Ex.A-3 Will found that the 1st respondent
herein has every right to file the Execution Petition to execute the decree in O.S. No. 132 of 1968. Consequently, the executing Court directed the
execution of the sale deed by the owners of the property and also the purchasers pending suit in favour of the respondents 1 and 5 herein.
Aggrieved by the order of the executing Court in E.P. No. 119 of 1982, the legal representatives, wife and son, of Sengoda Gounder have filed
this Civil Revision Petition.
Mr. A.R.L. Sundaresan, learned counsel appearing for the petitioners elaborately argued the matter contending that the 1st respondent herein
who filed E.P. No. 119 of 1982, has no Locus Standi to file the same and he cannot invoke Order 21 Rule 16 C.P.C. as an assignee of the
decree, nor S.146 of the Civil Procedure Code, on the facts and circumstances of this case. According to the learned counsel, the executing Court
went wrong in placing reliance on Ex.A-3, Will, which has not been duly proved. Though in the Court below the genuineness and validity of Ex.A-
1 was also challenged, learned counsel fairly stated that he is not now challenging the truth and validity of Ex.A-1 agreement. His argument is,
under Ex.A-1, the first respondent does not get any right in present .The first respondent will get a right, if at all, only after the petitioners herein get
a sale deed executed in their favour pursuant to the decree for specific performance in O.S. No. 132 of 1968. Till then, the remedy, if at all,
available to the 1st respondent herein, is, only to file a separate suit for specific performance to enforce the terms of Ex.A-1 agreement. On these
grounds, the order of the executing Court was challenged.
Mr. K. Govindarajan, learned counsel appearing for the 1st respondent (petitioner in E.P. No. 119 of 1982), submitted that the argument of the
learned counsel for the petitioners, conveniently ignores a vital factor, namely, the 1st respondent was put in possession of the suit property during
the lifetime of Sengoda Gounder in consideration of having received the amount for depositing the same to satisfy the condition imposed in the
decree in O.S. No. 132 of 1968. Further, S.146 of the CPC enables the 1st respondent as person claiming under Sengoda Gounder to file the
Execution Petition. He also submitted that the Explanation introduced in the year 1976 to Order 21 Rule 16, C.P.C. puts beyond controversy the
right of the 1st respondent herein to file the Execution Petition under S. 146 C.P.C. He also claimed that on a fair reading of the agreement in
Ex.A-1, the first respondent can be considered as an assignee of the decree, and as such, entitled to file the application under Order 21, Rule 16,
C.P.C. In support of his contention, he placed reliance on the following decisions of the Supreme Court as well as this Court;-Jugalkishore Suraf v.
Raw Cotton Co. Ltd. AIR 1955 S.C. 376, Zila Singh and Others Vs. Hazari and Others, Bhoop Vs. Matadin Bhardwaj, K.G. Rangaswami
Chettiar & Co. Bhavani v. Conuneicial Tax Officer, Erode 1957 M.L.J. 281:70 L.W. 129 and Kamppa Gounder v. Chiana Angappa Gounder
1971 1. M.L.J. 252:84 L.W. 143
Before going into the case-law, it is necessary to set out the relevant clause in Ex.A-1 on the basis of which alone, the 1st respondent herein
filed E.P. No. 119/82. The relevant clause in Ex.A-1 reads as follows:-
I may point out that in view of the stand now taken by the learned counsel for the petitioners that he does not challenge the genuineness and validity
of Ex.A-1. It is not necessary to go into the validity of Ex.A-3 will which was pressed into service only to show that Ex.A-1 was genuine. A fair
reading of the extract given above (from Ex.A-1 will clearly show that the deceased Sengoda Gounder has parted with his right and interest in the
land on receiving a sum of Rs. 20,500/- by parting with possession of the suit land in favour of the 1st respondent. While so, can it be said that
unless the legal representatives of the deceased Sengoda Gounder, by executing the decree, have a sale deed executed in their favour, the first
respondent herein cannot take any action to enforce Ex.A-1 agreement. In my view, having regard to the last but one (underline) sentence
extracted above, the answer to the above query will be in the negative. Therefore, the 1st respondent herein has got right to file execution petition
under S.146, C.P.C. if not under O.21 R.16, C.P.C. As rightly contended by the learned counsel for the 1st respondent, Explanation to Order 21,
Rule 16, C.P.C. which was introduced in the year 1976 clearly enables the 1st respondent on the basis of Ex.A-1 to file the Execution Petition.
Therefore, the contention of the learned counsel for the petitioners that the 1st respondent cannot have the benefit of either O.21, R.16, C.P.C. or
S.146, C.P.C., cannot be accepted.
Though number of judgments were cited, I consider, the judgment in Zila Singh and Others Vs. Hazari and Others, which has considered the
two earlier judgments of the Supreme Court, is enough to support the above view. In the said decision, the Supreme Court has held as follows:-
S.146 reads as follows:-
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.
Shorn of unessential the section provides that where some proceeding could be taken or application could be made by a person under the CPC
any other person claiming under him is entitled to make and maintain such an application. The limitation in the exercise of this right is to be found in
the expression ""save as otherwise provided by the Code"". It would mean that if the Code permits a proceeding to be taken or an application lobe
made by a party, then in the absence of a provision to the contrary, S.146 would enable any one claiming under such person as well to make the
same application. The object behind the section appears to be to facilitate the exercise of right by a person claiming under the person whose right
to maintain an application is beyond dispute.
S.146 come in for consideration in Jugalkishore Saraf Vs. Raw Cotton Co. Ltd., . In that case the facts were that the plaintiff in a pending suit for
recovery of debt transferred to another person all book and other debts due to them including the debt involved in the suit. The transferees did not
apply to be joined as parties in the pending suit and the suit continued in the name of the original plaintiffs and ended in a decree. Subsequently the
transferees as decree-holders applied for execution of the decree against the judgment debtor and upon a notice being issued, a contention was
raised that the application was not maintainable under O.21, R.16. One submission was that even if the application for execution was not
maintainable under O.21, R.O. 16, it would certainly be maintainable at the instance of the transferees of the original debt under S.146. Accepting
this contention Das, J. observed that a person may conceivably become entitled to the benefits of a decree without being a transferee of the decree
by assignment in writing or by operation of law. In that situation the person so becoming the owner of the decree may well be regarded as a person
claiming under the decree-holder. It was further held in that case that transferees of the debt derived their title to the debt by transfer from the
transfers and when the decree was passed in relation to decree they must also be regarded as persons claiming under the transfers and accordingly
they would be entitled to make an application for execution under S.146 of the Code of Civil Procedure. Bhagwati, J. in a separate and concurring
judgment in this point observed that the only meaning that can be assigned to the expression save as otherwise provided by this Code in S.146 is
that if a transferee of the decree can avail himself of the provision contained under O.21, R.16 by establishing that he is such a transferee he must
only avail himself of that provision. But if he fails to establish his title as a transferee by assignment in writing or by operation of law within the
meaning of O.21, R.16 there is nothing in that provision which prohibits him from availing himself of S.146 of the provision of that Section can be
availed of by him. It would thus appear that if the sale deed in respect of land on its proper construction would show that the decree itself was
assigned obviously the application for execution would be maintainable under O.21 R.16. But if the appellants do not fail within the four corners of
O.21, R.16 and they appear not to fait within the four corners of it, because though the land, the subject matter of the decree is sold to appellants,
the decree itself is not assigned, they would none the less be able to maintain application for execution under S.146, as persons claiming under the
decree holder.
Again, the Supreme Court, in Bhoop Vs. Matadin Bhardwaj, on the scope of O. 21, R. 16, and S.146 C.P.C., has held as follows:-
O.21, R.16 next provides that where a decree or the interest of a decree holder in the decree is transferred by assignment in writing or by
operation of law, the crenature may apply for execution of the decree to the Court which passed it, and the decree maybe executed as if the
application were made by the decree-holder. The newly added Explanation to the said Rule makes it clear that the Rule shall not affect the
provisions in S.146 of the Code nor shall it affect a transferee of rights in properly, which is the subject matter of the suit, from applying for
execution of the decree without there being a separate assignment of the decree. In the present case, the document clearly shows that Matadin had
to implead himself in place of the decree-holder as a party to the pending execution proceedings and then seek possession of the preemptional
property.
Matadin was substituted in place of the decree-holder after notice to the judgment-debtor. He was, therefore, entitled to execute the decree.
In the light of the above discussion, I have no hesitation to come to the conclusion that the order of the Court below is right and does not call for
any interference. The Civil Revision Petition is, therefore, dismissed. However, there will be no order as to costs.