Shyam Lal vs Raghubir Prasad

R. N. Ray, J.—In this appeal it has been contended that the judgment passed by the learned District Judge, Jhansi, was wrong and perverse and it should be set aside and the order of the trial Court be restored. It has been contended that the appellant has filed an application under Order XXI, Rile 16, C.P.C. wherein it was contended that he has purchased the property in question by sale deed dated 231169, and his name has been inserted as decreeholder. It has been contended that he purchased the property by registered saledeed which was the decretal property and the decree was purchased by him at price of Rs. 49. There was a direction to the Court below for ascertaining whether the present appellant has purchased the very property which was the subjectmatter of the decree of the Court below.

The finding has been given that the purchaser of the decree has purchased the disputed property of the suit. Now, it is to be seen whether he validly purchased the decree without any adjustment at a price of Rs. 49 and the purchase was made before the decree was pronounced ; was entitled to execute the decree in place of decreeholder and in view of provisions of Section 146 read with Order XXI, Rule 16 of the C.P.C. In this regard, the referred two decisions, as reported in AIR 1964 Pat 311 and AIR 1958 SC 394. It has been held in Patna decision relying upon the decision of the Hon''ble Supreme Court, as reported in AIR 1955 SC 376:

The provisions contained in Order XXI, Rule 16 are permissive and enable the transferee of a decree to execute the decree. There is nothing in that rule which expressly or by necessary implication precludes a person who claims to be entitled to the benefit of a decree under the decreeholder but does not answer the description of being the transferee of that decree by assignment in writing or by operation of law from making an application for execution which the person from whom he claims could have made. Hence a person who has become entitled to the benefits of a decree not by virtue of a transfer of the decree by assignment in writing but by virtue of a transfer of the property which is subjectmatter of the decree in his favour is entitled to execute the decree by virtue of Section 146 of the Code.�

In view of special position of law, the appeal stands allowed. The impugned order of the learned lower appellate Court is set aside and the judgment and order of the lower trail Court as affirmed. Since the opposite party did not appear and contest in this appeal, I do not order as to cost in this appeal. Appeal allowed.