^ HIGH COURT OF CHHATTISGARH AT BiLASPUR PETITION (Art. 2271 No. 2475/2008 PKTlTiONBKS versiis RBSPONDKNTS Koaci Luies, Kaipur aiici anotlier Rajkunwar Bai aiid others Order post for o-3 -5-2008 Sd/- Dhirendra Mishra Judge 1 ^^^ HIGH COURT Or enHATTISGARH AT BIL^PUR wpjT PETITION (Art. 22?t. No. 2475/2008 PETITiONERS 1. Road Liaes, Raipur Judgnient- debtor 2. Baldev Smgh, son of Shri Kesar Siagh, aged about 52 yeajrs, resident ofTeMbandha, Raipur Versiis RESPONDEN'TS Qri^aal Decree hoiders 1. Rajkunwar Bai, widow of late Bhagiratlii, aged aboiit 60 years, resideut of viilage TeUbaadha, P,H, No. 113, Distt Raipur 2. Jagdish, soii of late Bha^irailu, aged about 26 years 3. Ghanshyam, son of Late Bhagiratlxi, aged about 25 years 4, Ganga Bai, daughter oflate Bhagirathi, aged aboul 19 yeais 5. Jamuna Bai, daughter of Late Bhagirathi, aged about 18 ye?j:s 6, Yasiiwaat Porakh, aged about 37 years, sou of Shri Lalchaad Parakh, resident of Choubey Colony, Raipur 7, State of Chhattisgarh through the Coileciorale, Raipur Present: Siiri B.P. ShaiTaa, Advocate for uie petitioners. Shri Sushil Dubey, Goyt. Advocate for tlie State. WEJT BETmON UNDER ARTiCLE 227 OF THE CONSTTTUTION OF mniA O R DER 03 -5-2008 S&JiOimLE SHRi DHiRENDRA MISHRA,J Heard on adiiiission. 2. This petition is directed agaiast order dated 29-1-2008 passed m Execution Case No. 3550/2008 whereby leaaed 7th Civil Judge, Class i, Raipur, has allowed Uie application ofrespondent No. 6 fUed uuder Order XXI Kule 16 read with Section 49 ofCivil Procediire Code. 3. Facts of the mstant petition, m brief, is that the suit filed by respondents No. 1 to 5 was decreed vide Anuexure P-1 ia favour of fhem. The appeal preferred by fhe petitioiiers was also dismissed vide judgnient ofAiinexure P-2 and second appeal No. 157/2005 prefeiTed by the petitioiier is pendiag in the High Court. 4. The respondents No, 1 to 5 uiitiated proceedtags for executing fhe above decree before the tiial Comt, During the pendency of the execution proceedmg, the respondent No, 6 iiled aii appHcation under Order XXi Rule 16 read wifli Section 49 oftlie C.P.C. for substitution of meir name m piace of ti.ie decree holders, on tiie ground Uiat they have purchased fhe decreed property froiu the decree holders Uirough registered sale deed dated 10-3-2005. The executing court after hearmg fhe respondent No. 6 aad the decree hoiders, vide order dated 30-10-2007 aUowecl fhe appUcation for substitution and dtrected the decree holders to take necessaiy steps for substitution. The application of respoudent No. 6 under order V^ Rule 17, C,P,C. for ajiienduig fhe executiou application was also aUowed vide order dated 29-1-2008 and notices to the judgBient debtors were du'ected to be issued on 13-2-2008, 5, The petitioners have tmpugned the orders dated 30-10-2007 aact 29-1-2008 on the ground that the fii'st proviso to Order XXI Rule 16 of C,P.C. specificaUy mentious fhat where fhe decree, or such interest, as aforesaid, has been traiisfeiTed by assignment, notice of such applicatiou shali be given to the transferor aad Uie judgnient-debtor, ajid me decree shail not be executed unless fhe Court has heard tlieir objections (if aiiy) to its execution aiid tlie above provision is Biaiidatoiy, In the uistaiit case, from bare perusal of fhe record, it is evident that order of substitution of respondeut No, 6 in place of origuial decree holclers has been passed wimout heariiig the petitioner judgnieut-debtor, though Uie earlier order sheets show fhat notices were directed to be issued against Uie judgnient-debtor also. It was argued Uiat the .decree has not attaiaed fiiLaiity aiid fhe rights and liabiiities of the parties have not been ciystallized aad m these circuiiistances, traasfer of such decree is not permissible under the ^^^•^ /£^\ r^ ,4 ^a.^ law as chainpartious Iitigation is not pennissibie, as the saaie is agamst public policy. 6, The short question for consideration in tlds petition is fhat whether tlie executiag court was justified m substitutiiig the respondent No, 6 ui place of original decree holders on fhe basis of sale deed witli respect to suit property execiited by original decree holders ui favour of the respondent No, 6 without affordmg opportunity of heariiig to the judgment-debtor'? 7, The first proviso to Rule 16 of Order XXI of C.P.C, provides for application for execution of a decree by Uie traiisferee of fhe decree where fhe decree has been traasfeiTed by assigniaeiit, In such cases, it. is provided tliat fhe decree shaU not be executed unless fhe Court has heard the ob^]ections of fhe fraasferor aad judgaiient-debtor agamst its execution. However, explaiiation to Rule 16 of Order XXi of C.P.C. clearly mentions Uiat "'Nothuig ui fhis rule shall affect the provisious of Section 146, and a traiisferee of rights ia the property, which is me subject. matter of fhe suit, may apply for execution of the decree without a separate assignineat of the decree as required by Uiis rule/? Section 146 oftlie C,P.C reads as under:- !{146. Froceedings by dr agcdnst representau^cs^ Save as othenmse provided by this Code or by anif law for the iime being in force, where am/ proceedinQ ??zai/ be taken or appHcaiion fnade bj/ or agaitzst anif pevson, then the proceeding mai/ be taken or the application may be inade bif or agaifist any person claifmtU} under fmn.s 8. in view of explaiiation to Riile 16 of Order XXI of C.P.C., where Uie rights ui fhe property decreed has been traasferred by fhe decree holder, the provisions of Order XXI Riile 16 of C.RC, shaU not aftect Section 146 of C.P.C, aiid the traiisferee of rights iii Uie property, •.^^^...^^^^^^^.-.......^.^^^,^:,^^^ '•7 ..^ ^ 1-. t?IJ "'%f^«"y^/ c which is the subject -inatter of fhe suit, m.ay apply for execution of fhe decrce witiiout a separate assignnient of fhe decree as requu'ed by fhis rule. 9. in tlie uistsiit case, siace fhe property has ah'eady been traasfeiTed by tlie decree holders to fhe respondent No, 6, the respondent No. 6 has a right to execute tlie decree agaiast the judgnient-debtor independently even wifhout assignnient of the decree. So far as Uie objection offhe petitioner on tlie ground that the decree has not attaiiied tuiality aad rights of the property have not been ciystalUzed, and therefore, traiisfer of such decree is not pei-missible under the law, is concemed, it is open to fhe petitioners to take such objection before tlie executiag court or iii his second appeal, which may be considered in accordance wifh iaw. 10, For the aforesaid reasons, tliere is no illegaiity or iafirmity or jurisdictional error comniitted by fhe Court below in passiiig me mipiigned order, which waiTaats iaterference by this Court ia exercise ofjurisdiction underArticle 227 oftlie Constitution ofindia. 11, The petition is wiUiout substaiice, tiie saiae deserv-es to be dismissed aiid it is accorduigly disniissed, Sd/- Dhirendra Mishra Judge p/'