IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 CRP.No. 643 of 2008() --------------------- AGAINST THE ORDER DATED 08/08/2008 IN EP 220/2007 & E.A.170/08 IN OS.402/1995 of II ADDL. MUNSIFF COURT.,NEYYATTINKARA .................... REVISION PETITIONER/COUNTER PETITIONER ----------------------------------------------------------- P.K.MOHANA KUMAR, S/O. PARAMESHWARAN, PANKAJA BHAVAN, RAILWAY STATION ROAD, KANICHANKODE, MARUTHOOR DESOM, NEYYATTINKARA VILLAGE. BY ADV. SRI.G.S.REGHUNATH RESPONDENT/PETITIONER ------------------------------------ P.K.AJITH KUMAR, S/O.PARAMESHWARAN, SREE NILAYAM, BRAMANCODE, PATHANKALU, ATHIYANOOR VILLAGE, NEYYATTINKARA. ADV. SRI.RAM MOHAN.G. FOR R1 SRI.G.P.SHINOD FOR R1 SRI.MANU V. FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON 04/11/2009 PASSED THE FOLLOWING: ORDER ON I.A.NO.1909 OF 2008 IN C.R.P.NO.643 OF 2008 CLOSED. 4.11.2009 SD/- S.S.SATHEESACHANDRAN, JUDGE. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.643 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 4th November, 2009 ORDER The revision is directed against an order passed by the execution court directing delivery of the share of one of the decree holders to another decree holder, accepting the assignment of such share by transfer under a sale deed, and for putting up of boundary wall separating the property to be delivered over that of the respondent/judgment debtor under the supervision of an advocate commissioner. Judgment debtor who was proceeded under the execution proceedings has filed the revision impeaching the propriety and correctness of the impugned order. 2. The decree executed was passed in a suit for partition wherein the parties were a mother and her three children. Mother and two children as plaintiffs instituted the suit for partition of their 3/4th share in the plaint schedule property having an extent of four cents, against the present petitioner, the defendant. Accepting the plan submitted by the Commissioner, a final decree for partition alloting 3/4th share to plaintiffs was passed. Plaintiffs thereafter filed an execution petition for delivery of their 3/4th share in the property. CRP No.643/08 - 2 - During the course of the execution proceedings mother, the first plaintiff, moved an application for excluding her 1/4th share from the execution proceedings. That being allowed, the 2/4th share allotted to 2nd and 3rd plaintiffs were delivered over. The third plaintiff/respondent herein, later, moved another execution petition claiming that the mother had executed a sale deed in his favour in respect of her 1/4th share in the decree schedule property and, thus, he is entitled to get the property allotted as her share delivered over to him and also for putting up of a common boundary separating with the property (¼ share) allotted to the petitioner/judgment debtor. Petitioner/judgment debtor objected to the execution contending that the mother had executed a rent deed in his favour and he is continuing in occupation of the property allotted to her as a tenant. Another contention was also raised that in a suit filed by him an order of interim injunction which had been passed restraining his eviction from the premises by the respondent continue in force. Negativing the objections canvassed by the judgment debtor, the execution court passed the impugned order directing delivery of the property allotted to the mother under the decree to the respondent/third decree holder. Correctness of that order is CRP No.643/08 - 3 - impeached in the revision. 3. I heard the learned counsel for the petitioner. Though not raised as a specific ground to assail the order in memorandum of revision, at the time of hearing, the learned counsel for the petitioner/judgment debtor raised a challenge that the order of the execution court is unsustainable under law in as much as no notice was issued by the court to the mother, the first decree holder, whose share allotted under the decree was claimed by way of a transfer or assignment under a registered deed by the respondent. Learned counsel inviting my attention to the first proviso to Rule 16 of Order 21 of the Code of Civil Procedure contended that notice of the execution application should have been given to the transferor also and execution could have been proceeded only after hearing the objections to transfer of the decree from the transferor and also the judgment debtor. That was not followed and complied with by the execution court, and, so much so, the impugned order passed by the court below suffers from serious infirmity and is therefore liable to be set aside, is the submission of the counsel. The judgment debtor had claimed tenancy right over the property allotted to the mother on the basis of a rent deed executed by her, and, according to the learned CRP No.643/08 - 4 - counsel, the court below ordered for delivery without properly appreciating his claim over the premises as a tenant. On the other hand, the learned counsel for the respondent/decree holder contended that execution was sought for on the basis of an assignment of the property allotted to the mother under a registered sale deed executed by her, and so much so, it was not a case of transfer of a decree, the execution of which is governed by Order 21 Rule 16 of the Code of Civil Procedure. This was a case where assignment of a property which is subject matter of a decree arose for consideration and when that be so, a transferee who has obtained such right in a property is entitled to execute the decree without complying with the provisions to the proviso to Rule 16 of Order 21 of the Code of Civil Procedure, submits the counsel. So far as the claim of tenancy over the premises by the judgment debtor, it is contended that the judgment debtor has not produced any scrap of paper to substantiate his case, and, according to the learned counsel, it was rightly and correctly repelled by the execution court. 4. I find considerable force in the submissions made by the learned counsel for the respondent/decree holder. From the submissions made and also perusing the order passed by the CRP No.643/08 - 5 - execution court, it is evident that no challenge was raised by the judgment debtor to impeach the transfer of the property allotted as her share under the decree by the mother in favour of the respondent/third plaintiff in the suit. Execution was challenged on the basis of the previous execution proceedings taken and also banking upon the claim of tenancy over the property allotted in favour of the mother under a rent deed purported to have been executed by her in favour of the judgment debtor. In the previous execution proceedings, the mother had sought for avoiding execution relating to her share is not disputed. Delivery of the property allotted to the other decree holders including the present respondent in the earlier execution proceedings in no way affected the right of the mother to move for execution for delivery of the property allotted to her share under the decree at a later stage by way of a separate execution petition. The challenge canvassed before the execution court on the basis of the previous proceedings to impeach the execution has to be taken note of only for its rejection. So far as the claim of tenancy canvassed by the judgment debtor on the basis of a rent deed executed by the mother, the execution court has observed no material was placed to substantiate the objections so CRP No.643/08 - 6 - canvassed. When that be the case, that objection also lacks any merit. Then the only question surviving for consideration is whether any notice to the transferor mother as covered by the first proviso to Rule 16 of Order 21 of the Code of Civil Procedure, as contended by the learned counsel for the judgment debtor was required to be given before proceeding with the execution, to hear the objections, if any, of the transferor and the judgment debtor. The above rule applies where execution of a decree is sought for when the interest of any decree holder in the decree is transferred by assignment in writing or by operation of law to another and that transferee seeks for execution of the decree. But where a decree holder has transferred his right, title and interest in the subject matter of the decree in favour of another by a registered deed of conveyance, it is not a case of transfer of a decree and the above rule has no application. In Abraham Jacob v. Alice Kurien (1983 KLT 363) it has been held that the transferee of rights in the property decreed is entitled to execute the decree under Section 146 of the Code of Civil Procedure. The explanation appended to Rule 16 of Order 21 by the amendment of Act 104 of 1976 clearly postulate that the above rule does not apply to assignment of the property which is the subject matter of a CRP No.643/08 - 7 - decree by the decree holder and the rule applies only to the transfer of a decree or interest of any decree holder in the decree, the decree of which has been passed jointly in favour of one or more persons by assignment in writing or by operation of law. The above explanation reads thus: “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.” So much so, the challenge raised in the revision that the execution of the decree without giving notice to the transferor decree holder/mother as contemplated under the first proviso to Rule 16 of Order 21 of the Code of Civil Procedure has no merit. I do not find any impropriety or illegality in the order passed by the execution court. Revision lacks merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE CRP No.643/08 - 8 -