CHANDERWATI DEVI Vs. HARISH CHAND RASTOGI

JUDGEMENT

(1.) On 14th July, 1977 a decree for Rs. 69, 577.61 paise with proportionate costs was passed in favour of the decree holder and against all the judgment debtors. The decree holder was also granted interest on the principal amount of Rs. 50,077.61 paise @ 6% per annum from the date of the decree till realisation. The decree holder filed execution of the decree on January 9, 1978. She expired on March 14, 1980. It appears that the decree holder had executed a Will assigning the decree in favour of judgment debtors 2 and 3. Probate of the Will was granted by the Court of the District Judge on 12th February, 1987. Judgment debtor No. 4 also expired on 20th March, 1990. Judgmenit debtors 2 and 3 are now seeking to execute the decree against the legal heirs of judgment debtor No. 4. The legal heirs of judgment debtor No. 4 have objected to the execution of the decree against them and have submitted that the decree cannot be executed by judgment debtors 2 and 3 on the basis of the Probate granted in their favour by the Court of the District Judge. Delhi.

(2.) The short question involved in this case is whether the applicants who were also the judgment debtors can execute the decree against one or the other judgment debtors even assuming the share of the decree holder has devolved upon them under the Will.

(3.) Mr. Gopal Narain Aggarwal, learned counsel for the legal heirs of judgment debtor No. 4 has contended that under Order XXI Rule 16 Civil Procedure Code where the decree is for payment of money against two or more persons and interest of the decree holder has been transferred to one of the judgment debtors, the decree shall not be executed against others. The, therefore, submits that even assuming that the judgment debtors, 2 and 3 have been granted Probate, of the Will executed by the decree holder, they have no right to execute the decree against the legal heirs ol judgment debtor No. 4 as they themselves were judgment debtors. Order XXI Rule 16 of the Code reads as under:-