IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 OP(C).No. 1862 of 2011(O) ------------------------------------- [EP.NO. 56/2007 IN OS.NO.442/1990 OF MUSNIFF COURT,ADOOR] .................... PETITIONER: ------------------- C.E.SAMUEL,S/O.EASHAW,SANTHOSH COTTAGE, KADAMPANADU VADAKKUM MURI,KADAMPANADU VILLAGE. BY ADV. SRI.D.KISHORE. RESPONDENTS: ------------------------ 1. SUKUMARI AMMA,CHARINJAKALA PUTHEN VEEDU, KADAMPANADU VADAKKU MURI,KADAMPANADU VILLAGE, PIN-689 645. 2. K.N.SUBHADRAMMA,PALAPARAMBIL,KADAMPANADU MURI FROM KOCHUKALEEKAL VADAKKETHIL,KADAMPANADU MURI,KADAMPANADU VILLAGE,PATHANAMTHITTA DISTRICT, PIN-689 645. R1 BY ADV. SMT.MINI GOPINATH, R2 BY ADVS. SRI. K.SHAJ, SRI.SAJJU.S. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19/12/2011, ALONG WITH CRP. NO. 275 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.1862/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE JUDGMENT DTD. 17/01/1997 IN O.S. 442/90. EXT.P.2: COPY OF THE JUDGMENT DTD. 30/09/2005 IN A.S. 52/07. EXT.P.3: COPY OF THE JUDGMENT DTD. 26/02/2009 IN RSA 1094/08 OF THIS HONOURABLE COURT. EXT.P.4: COPY OF THE SALE DEED DTD. 03/04/2003. EXT.P.5: COPY OF THE E.P.56/07 IN O.S. 442/90 OF MUNSIFF'S COURT, ADOOR. EXT.P.6: COPY OF THE E.A. 13/2011 IN E.P.56/07 IN O.S. 442/90 OF MUNSIFF'S COURT, ADOOR. EXT.P.7: COPY OF THE ORDER DTD. 16/03/2011 IN E.P.56/07 IN O.S. 442/90. EXT.P.8: COPY OF THE ORDER DTD. 16/03/2011 IN E.A. 13/2011 IN E.P.56/07 IN O.S. 442/90 OF MUNSIFF'S COURT, ADOOR. RESPONDENTS' EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE Prv. THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1862 of 2011 & C.R.P. No. 275 of 2011 ==================================== Dated this the 19th day of December, 2011 J U D G M E N T Parties are referred as petitioner and respondents in O.P(C) No.1862 of 2011 for convenience. 2. The Original Petition and Revision arise from the order passed by the learned Munsiff, Adoor on E.A. No.13 of 2011 in E.P. No.56 of 2007 in O.S. No.442 of 1990. Second respondent filed the suit for prohibitory injunction. First respondent filed written statement and made a counter claim. The suit was dismissed and the counter claim was decreed as per which second respondent was directed to restore a pathway and a Kayyala to its original position. Pending appeal, petitioner (in O.P(C) No.1862 of 2011) purchased the counter claim schedule property but the assignment deed recited that first respondent (assignor) will continue the litigation. Appeal ended in a dismissal. That was followed by the first respondent-counter claim decree holder filing E.P. No.56 of 2007. While that execution petition was pending petitioner, the assignee of the counter claim schedule property O.P(C) No.1862 of 2011 & C.R.P. No.275 of 2011 -: 2 :- from the first respondent filed E.A. No.13 of 2011 to implead him as additional decree holder in E.P. No.56 of 2007. Executing court dismissed E.P. No.56 of 2007 (by Ext.P7, order in O.P(C) No.1862 of 2011) as the decree holder (first respondent) has transferred the counter claim decree schedule property and relying on the decision of the Supreme Court in Vidhya Sagar v. Sudesh Kumari ([1976] 1 SCC 115). Consequent to the dismissal of the execution petition, E.A. No.13 of 2011 preferred by the petitioner- assignee from the first respondent was dismissed as per Ext.P8, order for the reason that execution petition is dismissed. Petitioner-assignee from the first respondent has filed O.P(C) No.1862 of 2011 challenging Exts.P7 and P8 orders while the first respondent-counter claim decree holder has challenged dismissal of E.P. No.56 of 2007 in C.R.P. No.275 of 2011. 3. It is contended by learned counsel for petitioner and the first respondent that the impugned orders are unsustainable. It is pointed out by learned counsel that Section 146 of the Code of Civil Procedure (for short, “the Code”) only enables the legal representatives to sue or be sued in continuation of the proceeding and that even that provision does O.P(C) No.1862 of 2011 & C.R.P. No.275 of 2011 -: 3 :- not prevent the original plaintiff/defendant to proceed with the proceedings or be proceeded against. It is contended that Rule 16 of Order XXI of the Code enables the assignee of the property from the decree holder to seek execution of the decree notwithstanding that there is no assignment of the decree itself since by operation of law, right to execute the decree stands transferred to the assignee. Reliance is placed on the decisions in Padmanabha Pillai v. Sulaiman Kunju (1987 [1] KLT 199) and the observations in paragraph 17 of Gopinatha Pillai v. Rajappan (2011 (2) KLT 59). Learned counsel for second respondent-judgment debtor contended that by assignment first respondent-decree holder ceased to have any interest in the property to be executed and hence question of proceeding with E.P. No.56 of 2007 does not arise though it may be open to the petitioner to file fresh petition for execution. 4. Section 146 of the Code states 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. In view of the said provision, a legal representative is entitled to proceed O.P(C) No.1862 of 2011 & C.R.P. No.275 of 2011 -: 4 :- with or proceeded against in the same proceeding. True, that in the present cases there is no assignment of the decree as such. But it is not disputed that counter claim schedule property was assigned during pendency of the appeal in favour of petitioner. If that be so, by operation of law it is open to the petitioner-assignee either to file fresh execution petition or if it is already filed, continue the execution petition seeking his impleadment. This is clear from Rule 16 of Order XXI of the Code. In Padmanabha Pillai v. Sulaiman Kunju (supra) it is held that assignment of the decree is not required where there is a transfer of right in the property which is the subject matter of the suit and that the assignee can apply for execution. If that be so there is no reason why petitioner should not be impleaded as additional decree holder. Nor does the transfer prevent the first respondent from continuing the execution proceeding as Sec.146 of the Code is only an enabling provision. The observation in paragraph 17 of the decision in Gopinatha Pillai v. Rajappan (supra) and the decision in Raghuvir Saran Verma v. Special, Judge, Mathura and Others (AIR 1990 NOC 159 (Allahabad) are to that effect. O.P(C) No.1862 of 2011 & C.R.P. No.275 of 2011 -: 5 :- 5. Decision relied on by the learned Munsiff and referred to in the order under challenge has no application to the facts of the cases. There, the question considered was whether a decree for pre-emption survived for execution after the U.P. Zamindari Abolition and Land Reforms Act, 1950 enacted. 6. In the light of what I have stated above, the impugned orders passed by the learned Munsiff cannot be sustained and are liable to be set aside. Resultantly, Original Petition and Civil Revision are allowed as follows: Dismissal of E.P. No.56 of 2007 and E.A. No.13 of 2011 in O.S. No.442 of 1990 are set aside. E.A. No.13 of 2011 is allowed and petitioner in O.P(C) No.1862 of 2011 shall be impleaded as additional decree holder in E.P. No.56 of 2007. Executing court is directed to proceed with the execution petition as provided under law. All pending Interlocutory applications will stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv