NAGELIAMMA NARAYANIAMMA Vs. RAMAN PILLAI

JUDGEMENT

(1.) This is an appeal arising from an order passed in execution purporting to apply the second proviso to R.16 of O.21 of the Code of Civil Procedure.

(2.) The appellants are the heirs of one Govinda Pillai and one of the judgment debtors is his wife, the seventh defendant in the case. This Govinda Pillai had taken an assignment of the decree. The decree was on the basis of a hypothecation bond and directed the payment of money by defendants 1 to 21 and was also charged on the hypotheca which was scheduled to the plaint. When the said Govinda Pillai took out execution, it was contended by some of the judgment debtors that the assignment of the decree taken by Govinda Pillai was benami for his wife the 7th defendant in the case and that in view of the second proviso to R.16 of O.21, the decree has become incapable of execution. It is this contention that has been accepted by the court below which by its order under appeal dismissed the Execution Petition.

(3.) The question to be decided is whether in the case of a decree passed against some of the defendants and also against the properties scheduled to the plaint the application of the second proviso to R.16 of O.21 will preclude an assignee decree holder from executing the entire decree. R.16 of O.21 is in these terms: