IN ThE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 22 DAY OF AUGUST 2011 BEFORE THE HON’BLE MR. JUSTICE JAWAD RAHIM CIVIL REVISION PtiiiiON NO.193 OF 2011 Between: Smt. H.G.Sriiakshmi W/o Late Sri S. Seetharamiah Aged 56 years R/at No.2877, Northern Portion 4 th Cross, Chamundipuram Mysore. Petitioner (By Sri Manmohan, Advocate) And: 1. Sri M.S.Venkatesh 5/0 Late Sri M.S.Srikantaiah Aged about 50 years Blat No.2, 4 th Cross N.R.Coiony, Bangaiore. 2. Sri M.S.Krishnaprasad Sb Late M.S.Srikantaiah Aged about 48 years Blat No.17, Seetha Thlrumaiai Nagar Viiiivakam, Chennai-400023. 3. Smt.Rajalakshmi W/o Sri M.B.Chandrashekar Aged about 45 years Blat No.64/5, Platinum Apartments Annanur West Extension Chennal-400 012 .. . Respondents (By Sriyuths SSSripathy and KBhaskar for Ri to R3) THIS PETITION IS FILED U/5J15 OF CPC AGAINST THE ORDERS DATED 15O72O11 PASSED ON LA.3 IN EXJ56/2011 ON THE FILE OF THE COURT OF C/CHARGE OF II ADDL. I CIVIL JUDGE AND ]MFC, MYSORE, DISMISSING LA3 FILED U/SEC47 OF CPC. THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Revision under Section 115 of the Code of Civil Procedure is directed against the order dated i5O72O11 in Execution Case N0J56/2011 on the file of the II AddI. I Civil Judge and JMFC, Mysore, whereby the objections raised by the judgment debtor regarding executability of the decree is rejected. 2. Heard. 3. The factual matrix manifest from the case papers reveals, Venkatesh along with two others filed a suit in O.S.No833/i998 seeking a jL.dgment to declare they are owners of the schedule property described in the schedule; for a decrce of Dermanen ma ndatory injunction directing - dcsecs e 3 property and for grant of Rs.5,000/- towards damages and to declare a Will alleged to have been executed by Lakshmlnarasamma dated 12.02.1996 as null and void and for such other reliefs. The suit was decreed on contest against the revIsion petitioner by judgment and decree dated 06.02.2006. It was questioned in appeal which was a failure. The decree obtained in O.S.No.833/1998 was put In execution In Ex.156/2011. 4. In execution, the petitioner-judgment debtor resisted the execution raising objection regarding executabiiity of the decree and also the locus of the decree holders. The main contention is that during pendency of the suit and before rendition of judgment on 06.02.2006, the plaintiff-decree holders had transferred all the right, tide and Interest in the property in question by virtue of deed of sale dated 14.12.2005 in favour of one Adarsh. The decree obtained by them on 06.02.2006 was thus a nullity as they did not have any subsisting right, tide or interest. Consequently, the judgment and decree so obtained by the plaintiff-decree holders was unenforceable 4 for want of subsisting right. Besides, the judgment debtor simultaneously filed a suit in O.S.No.84/2011 seeking a declaration that the judgment and decree In O.S.No.833/1998 dated 06.02.2006 is a nullity. 5. He filed applications to reject execution and it was resisted seriousiy by the decree holders. The learned Trial Judge by the impugned order has rejected the applications and has ordered execution to proceed further. Assailing this, the present revision is flied. 6. Mr.Manmohan, learned Counsel would reiterate the grounds urged by him in the Trial Court to resist execution. He submits the Decree Holders had no subsisting right when they obtained decree and thus, the decree obtained by suppression of material facts of transfer of property is unenforceable. Thus, it is nullity inexecutable and all such questions had to be considered by the Trial Court under Section 47 of the Code of Civil Procedure. He would further submit that the judgment debtor rightly flied an application under Order 21 Rule 26 of the Code of Civil Procedure seeking stay of the 5 proceedings till the decision In O.S.No.84/2011 is given. Rejection of that application is also bad in law. 7. Learned Counsel seeks cltational support to his contention relyIng upon the following decisions: In the case of Haji Sk.Subhan Vs. Madhorao AIR 1962 SC 1230, the Apex Court referring to the tenancy laws of Madhya Pradesh and Madhya Pradesh Abolition of Proprietory Rights (Estates, Mahals, Alienated Lands) Act, 1950 held - “suit for possession on the basis ofproprietory right Reading of a decree passed with costs was inexecutable as when the execution was taken out, the rights had vested in the State and not in the decree holder. Therefore, the decree was inexecutaable. The Executing Court can refuse to execute it” 8. In the case of Vidya Sagar Vs. Smt.Sudesh Kumarl and others in AIR 1975 SC 2295 referring to the ambit of Section 47 of CPC and applying the provisions of U.P.Zamindarl AbolItion and Land Reforms Act, it was held execution of decree after enforcement of the Act for 6 obtaining possession of the land was not permissible, as the decree was Inexecutable. 9. The core contention of learned Counsel is, decree obtained in respect of the property which was disposed of by them during pendency of the suit itself is a nullity as the plaintiff had, on the date of rendition of the judgment, no subsisting right, title or interest. Consequently, such a decree could not be put to execution by them and judgment debtor was not obliged to comply with the terms of such decree which was passed after Decree Holders had relinquished their right, title and interest. 10. Per contra, Sri.Srlpathy, learned counsel has taken me through the fact position which, of course, Is not different from what was urged by Manmohan. The contention of Srlpathy that decree is enforceable is based on the judgment of the Apex Court in the case of Dhurandhar Prasad Sirigh Vs. Jal Prakash University and Others 2001 AIR SCW 2674. He would submit that alIenation, assignment of interest in immovable property pendente lite does not termInate the proceedings. He 7 would submit that In view of provision of Rule 10 of Order 22, CPC, assignment of interest is permissible. The assignee steps into the shoes of the plaintiff and the suit will not abate. Therefore, a decree passed after such transaction being valid in law is executabie and any objection to the contrary is not sustainable. 11. Contentions of learned Counsel for both sides have received my consideration. 12. There is no dispute on facts. We can straightaway go to the position of law on the subject. The facts undisputed are, plaintiffs had during the pendency of the suit sold the property to one Adarsh and therefore had no subsisting right as on 06.02.2006, when the judgment and decree was passed. It must aiso be noticed that the applicant-judgment debtor had questioned the judgment and decree in appeal and again in second appeal before this Court and had unfortunateiy, lost all her iegai batties against the decree holders. Firstly, we may have to keep in mind that in none of the appeal actions, the judgment debtor had raised this question for an adjudication. In fact, 8 this would have been one of the main grounds on which the judgment of the Trial Court could have been assailed in appeal. Having not raised such a ground, the question is whether the judgment debtor is estopped from raising such pleas, which are relating to the question of fact. Even otherwise, it is to be seen that after the property was disposed of, the judgment has been passed in favour of the plaintiffs who are now the decree holders. The relevant provlson to be taken into consideration is Order 22 Rule 10 of CPC which reads thus: Procedure in case of assignment before final order in suit — (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1). a1v 9 13. It clearly envisages that in cases of assignment, creation or devolution of any Interest during pendency of the suit, the suit may, by leave of the Court, be continued by or against the persons upon whom such interest created or devolved. That would mean that successor in interest, an assignee, the person in whom right is created, with leave of the Court could continue the proceedings to reach a logical end. The suit as It is, will not abate, but the question is, Is it necessary that the person who has acquired such right by assignment, creation or devoiution of interest must necessarily apply to the Court. If he does not, what is the consequence? 14. ThIs issue has been considered by the Apex Court in Dhurandhar Prasad Singh’s case referred to supra, where the Apex Court has summarised its conclusion as follows: “Under Rule 10 Order 22 of CPC, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against• persons upon whom such interest has devolved and this I0 entitles, the person who has acquired an interest in the subject matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested to apply to the Court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet he will be bound by the result of litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry the suit, the suit in his hands is not a new suit.” Thus the Apex Court held that decree passed in a suit in which the assignee, the person on whom right has devolved or a person who has acquired rIght pendente lite can continue the suit as a party and if he has not done so, then also the decree will not be a nullity. The decree will not be void and. voidable. It will be executable. Referring to scope of Section 47 of CPC, the Apex Court as4/ II held that under Section 47, all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or satisfaction of a decree have got to be determined by executing the decree and not by a separate suit. The powers of the Court under Section 47 are quite different and are narrower than Its powers of appeal, revision or review. The exercise of powers under SectIon 47 of the Code is microscopic and lies In a very narrow inspection hole. Thus It is plain that the Executing Court can allow objection under SectIon 47 of the Code to the executablllty of the decree If It Is found that the same is void ab inftio and nullity, apart from the ground that decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. From such observation, it is quite clear that circumstances in which the decree could be rendered inexecutable are spelled out. 12 15. In the present case, we do not have such a situation. The decree passed is lawful as referred to above and thus was executable. The executability of a decree is not Impaired either by subsequent events in view of Rule 10 Order 22 or by any change of law, as it is not a case showing decree is void ab initio and a nullity. It is also not the case of judgment debtor that decree has been passed in ignorance of any provision of law or that law has been promulgated subsequently, making a decree inexecutable. 16. In this view of the matter, the contention of judgment debtor that decree passed in favour of the plaintiff who had no subsisting right, title or interest as on the date of judgment renders the decree inexecutable, has to be discounted. It is further to be held that in view of the dedsion of the Apex Court that no adverse consequences are spelled out, if a person who has acquired right In a manner referred to under Rule 10 does not seek leave of the Court, his right to seek benefit of decree is saved. Consequently, the decree will be executable. (1 13 17. But the question is who could seek its execution. As on this point, I am inclined to accept the contention of Manmohan that the decree holders are those who have lost right, title or Interest In the subject matter. The person who has acquired right, title or interest is not the decree holder. 18. Learned Counsel Sripathi’s contention that the case of Dhurandhar Prasad Slngh saves the execution filed by predecessor In title Is difficult to accept for the reason that the judgment would come in aid of a person who has acquired right, title or interest pendente lite and seeks to continue the proceedings or seeks execution of the decree passed In favour of his predecessor in tItle. In other words, the decision aids a person who had acquired right, title or Interest in the property during pendency of the suit, but had failed to seek leave of the Court to continue the proceedings but seeks to enforce decree. If such a suit had reached logical end in a decree, he can seek execution of the decree irrespective of the fact that he was not a party in the proceedings, In which a decree has been ‘4 passed. Therefore, no objection could be raised against such a person seeking execution of a decree passed in favour of predecessors-in-title who were the plaintiffs. But certainly the proposition of law in the judgment does not suggest remotely also that a plaintiff who had lost right, title or interest during pendency of the suit can still seek execution of the decree without assignee seeking benefit of it. 19. Srlpathy’s alternate contention was, as the plaintiffs had transacted with the transferee to deliver possession of property in question and as they are bound by the provisions of Section 55 of Transfer of Property Act, they can seek execution of decree to put him in possession in compliance with the terms, conditions of the sale transaction Inter alia between them and him Is not acceptable. This proposition is not acceptable for the reason that the decree In question is not a decree for specific performance. The decree In question is a decree declaring plaintiffs to be the owners of the property In question in which, there was no reference to any Li ‘5 S transaction between the plaintiffs and the purchaser. Therefore, the proposition under Section 55 of the Transfer of Property Act will not come to the aid of the present decree holders to seek execution. 20. In the result, the conclusion would be that though plaintiffs in O.S.No.833/1998 had sold the property in question to one Adarsh, the decree passed in the said suit subsequent to the sale on 06.02.2006 Is not ab initlo void or nullity. Merely because the transferee in title Adarsh had not sought leave of the Court as envisaged under Rule 10 of Order XXII to continue the proceedings as transferee will not impact the decree passed in favour of the plaintiffs/transferors. Thus the suit had not abated and the decree passed Is legal and enforceable. 21. However, for enforcing a decree in an execution proceedings, it is the transferee/assignee who would be entitled to seek execution of the decree and not the plaintiffs who had relinquished their right. 16 S 22. However, the execution could be in a joint action by the predecessor who had filed the suit along with the successor in title/assignee/transferee or by the assignee/transferee in his individual capacity. In this view, the revision partly succeeds. The impugned order is set aside holding that though the decree under execution is not a nullity and is enforceable against revisional petitioner/judgment debtor, the execution petition flied only by the plaintiffs/predecessors in titie is not maintainable in the absence of the successor in title/assignee of the interest from them. Hence, while setting aside the order impugned, the execution petition is restored to the file of the trial Court to give opportunity to the transferee/assignee to come on record to prosecute the execution petition in the absence of which, the execution petition shall stand dismissed as not maintainable. No order as to costs. Sal— JUDGE JT/