Gnanasundaram and Another vs Murugesa Naicker

K.M. Natarajan, J.—This appeal is filed by the unsuccessful objectors before the lower appellate Court. The facts which are necessary for

the disposal of this appeal can be briefly stated as follows :-- One Pachiammal sold the property which is the subject matter of this second appeal

on 2-11-1967 in favour of the respondent-plaintiff for Rs. 7000. At the time of the sale, there was litigation pending in O.S. 523 of 1962 under

which Pachiammal filed the suit against one Veerappa Asari and Nataraja Asari (father of the appellant) for a declaration of title and for recovery

of possession. The said proceeding ended in compromise in S.A. 1175 of 1966 on 25-6-1970 between Pachiammal and the appellants'' father

and brother. As per the said compromise deed, Pachiammal''s title was declared in respect of the said property. According to the respondent-

plaintiff, by virtue of the sale deed dt 2-11-1967, executed by Pachiammal, he is entitled to the property . and his title was affirmed by the

compromise decree and he stepped into the shoes of Pachiammal. Hence, he filed the execution petition on 11-10-1981, for delivery of

possession in execution of the decree in O.S. 523 of 1962. The appellants herein obstructed delivery on the ground that the said Pachiammal

executed a settlement deed in their favour on 6-9-1971, and that they are entitled to the property. The respondent-plaintiff contended that the

settlement deed is not true and valid. The settlor Pachiammal had no right on that day to execute the settlement deed and that the obstruction is to

be removed. To that effect, he has filed E.A. 1995 of 1981. The appellants herein contended that they are entitled to the property by virtue of the

settlement deed dt. 6-9-1971, They also contended that they were not parties to the earlier compromise decree which is the subject matter of the

execution proceedings. Further, neither the decree holder nor the auction purchaser is entitled to maintain the application under Order 21, Rule 97,

C.P.C. for removal of obstruction.

On the side of the respondent, he examined himself as P.W. 1 and Exs. P. 1 to P. 6 were marked. On the side of the appellants herein, the first

appellant was examined as R.W. 1 and Exs. Rule 1 to Rule 3 were marked. The executing Court overlooking the objections of the appellants

allowed the petition and directed removal of obstruction. The appellants were unsuccessful before the lower appellate Court. Hence this second

appeal.

The appeal was admitted on the following substantial questions of law-

Whether in the law the Courts below were right in omitting to note that the title if any of the respondents had to be agitated before the proper

forum and Order 21, Rule 97, C.P.C. application by the respondent was not maintainable ?

Whether the Courts below were right in failing to see that Order 21, Rule 97, C.P.C. would apply only against the judgment debtor and his

transferees and it had no application when the objectors put forward rival title under the decree-holder herself?

As regards the various prior proceedings, referred to in this proceeding, there was no dispute. It is seen that Pachiammal''s title was declared

and a decree for possession was granted in her favour in the suit which culminated in S.A. 1175 of 1966 on 25-6-1970, by virtue of Ex.P. 4. The

suit was filed by her in O.S. 523 of 1962. It is also not in dispute that Pachiammal executed a sale deed in favour of the respondent herein in

respect of the suit property on 2-11-1967, during the pendency of the said proceedings. However, the appellants herein claimed right to the

property on the ground of the settlement deed executed by the said Pachiammal in their favour after the disposal of the second appeal The father of

the appellants was a party to the second appeal, and the decree which is under execution. It is seen that the same objection was raised by the

father of the appellants herein in the previous execution application that the respondent is not the decree holder, and the said objection was

overruled. The father of the appellants filed C.M.A. 116 of 1973 and it was dismissed by the District Court as is evidenced by Ex.P. 5. He was

unsuccessful before this Court also in A.A.O. 174 of 1974, as per Ex.P. 6, dated 25-7-1978. It was only thereafter, the respondent filed the

execution petition for delivery of the property under Order 21, Rule 35, C.P.C. In view of the sale deed Ex. P.1, executed by Pachiammal even in

1967 while proceedings were pending in favour of the respondent and her title was declared in S.A. 1175 of 1966 on 25-6-1970, the respondent

became entitled to the property. The alleged settlement deed in favour of the appellants does not convey any title even if it is held that the

settlement deed is duly proved even though the original settlement deed was not produced and the attestor and the settlor were not examined.

Now, let us consider the legal objection raised by the learned counsel for the appellant. According to the learned counsel, only a decree-holder or

an auction purchaser can file a petition for removal of obstruction. Further, in the absence of any document in his favour assigning the decree, by

the mere fact that the respondent obtained a sale deed, he cannot execute the decree obtained by his vendor. In Section 146, C.P.C. it is provided

that 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. Order 21, Rule 16, C. P. C. deals with filing of an application for execution by transferee of

decree, by way of assignment writing or operation of law. In the Explanation to that Rule, it is clearly provided that ''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. As rightly observed by the Courts below by virtue of the Explanation

to Rule 16 of Order 21, C.P.C. read with Section 146, C.P.C the respondent who got transfer of the subject matter of the suit by virtue of the sale

in his favour can apply for execution of the decree without a separate assignment of the decree as required by Rule 16. Learned counsel for the

appellants merely submitted that the Explanation to Rule 16 of Order 21, C.P.C. was added by Amendment Act 104 of 1976 and it was repealed

and that the Explanation cannot be taken to undermine the meaning of the main section. I do not find any merit in the said contention. There is

absolutely nothing to show that the Amendment Act 104 of 1976 was repealed. Since the amendment was carried out in the main Act, the

separate Act was considered to be repealed as superfluous. In the circumstances, it cannot be said that the Explanation has no weight, it cannot

also be said that the Explanation takes away the effect and purport of the main rule. It is only an explanatory note to Rule 16. In view of the main

provision in Rule 16, it is provided that 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, on the ground that the said document is unnecessary in view of the conveyance deed already

obtained by him. There is absolutely nothing to show that the Explanation runs counter to the main rule and as such it has ho effect Hence, I do not

find any merit in the said contention and I concur with the findings of both the courts below and in view of Order 21, Rule 16 read with Section

146, CP.C, the execution petition filed by the respondent is perfectly legal and correct He has every locus standi to file the same. The above

conclusion is supported by the judgment of this Court reported in Karuppa Goundar v. Chinna Angappa Goundar (1971) 84 MLW 143 wherein

relying on the decisions in Jugalkishore Saraf v. Rao Cotton Co. Ltd. (1955) 1 MLJ (SC) 220 : AIR 1955 SC 376 and Saila Bala Dassi Vs. Sm.

Nirmala Sundari Dassi and Another, , held -

Having regard to the terms of Section 146, C.P.C. persons in the position of respondent can also enforce the rights under the compromise decree

against the opposite party. Thus, in this case, the respondent who has obtained the rights of the first defendant in the compromise decree is entitled

to enforce those rights in the same manner as the plaintiff in the suit could have enforced his rights under the compromise decree against the

respondent herein as the representative in interest of the first defendant. The lower Court has therefore rightly invoked Section 146, C.P.C. and

found that the respondent is entitled to ask for the amendment of the compromise decree.

In Jugalkishore Saraf v. Rao Cotton Co. Ltd. (1955) 1 MLJ 220 : AIR 1955 SC 376 their Lordships of the Supreme Court discussed the precise

scope and ambit of Section 146 and Order 21, Rule 16 and pointed out that a person may 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 which case he falls within the scope of Order 21, Rule 16,

CP.C. and if he is not such a transferee, he may avail himself of the provision u/s 146 if all the conditions are fulfilled. In Ponniah Pillai Vs. T.

Natarajan Asari, , Kailasam, J. relying on the observations of the Supreme Court in the above quoted case, held that a person, who claims to be

entitled to the benefit of the decree, but who does not answer the description under Order 21, Rule 46, C.P.C. is not precluded under from

making an application which the person from whom he claims could have made as provided u/s 146, C.P.C The same view has been followed by

Venkataraman, J. in Rangaswami Naicker Vs. Rangammal (died) by proposed L.R., K.R. Venkataswami Naidu, . In Saila Bala Dassi Vs. Sm.

Nirmala Sundari Dassi and Another, the Supreme Court observed that Section 146 was introduced with the object of facilitating the exercise of

rights by persons in whom they come to be vested by devolution or assignment and that, being a beneficial provision, it should be construed

liberally and so as to advance justice and not in a restricted or technical sense. In Rangaswami Naicker Vs. Rangammal (died) by proposed L.R.,

K.R. Venkataswami Naidu, it was held :-

Regarding the applicability of the exact provision, on facts, it was held, Order 21, Rule 16, C.P.C. will not apply because the Will does not assign

the decree; in fact, it does not refer to the suit at all. Hence, there has not been any assignment in writing or by operation of law under Order 21

Rule 16. But, the applicant can maintain the petition u/s 146, C.P.C. as a person claiming under the decree holder.

Thus, it is clear from the ratio laid down in the above cases that the respondent who claimed title under the decree-holder, is certainly entitled to

maintain the execution petition u/s 146 and the Explanation to Rule 16 of Order 21, C.P.C.

As regards the second contention that only a decree-holder or an auction purchaser can maintain a petition under Order 21, Rule 97, C.P.C. it

is seen that u/s 146, the proceeding may be taken by the person claiming under the decree-holder except as otherwise provided by the Code. The

Explanation to Rule 16 of Order 21, C.P.C. says that 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 the rule. When once a person steps into the shoes of the

decree-holder and becomes the holder of the decree, he is entitled to take all the incidental applications including the one under Order 21, Rule 97,

C.P.C. Hence this contention also fails. Both the Courts below have observed that in the compromise decree, the father of the appellants has also

signed and that the appellants are also bound by the compromise decree. The learned counsel for the appellants submitted that the appellants are

claiming title to the property under the settlement deed executed by Pachtammal that they are not claiming the property under their father and that

the said reasoning is not correct. It is to be noted that even if that contention is accepted, yet, since they claimed title by virtue of a settlement which

came into existence long after the compromise decree and from a person who is a party to the compromise decree, certainly they cannot challenge

the decree as not binding on them. For all these reasons, the substantial questions 1 and 2 are answered against the appellant and in favour of the

respondent. Further, the concurrent findings of both the courts are supported by acceptable evidence are convincing reasons and that there is no

infirmity in the finding for this Court to interfere in the second appeal.

In the result, the appeal fails and stands dismissed. However, in the circumstances of the case, there is no order as to costs.