SATHEESH Vs. SURESH

JUDGEMENT

(1.) It is a case wherein a decree for specific performance was granted, which was upheld by the first and second appellate court, thereby it has become final and conclusive. Later on, a sale deed was executed in execution of the decree and the same was engrossed on stamp paper. The petitioner is the 6th respondent in E.P.No.137/2010. Under the impugned order, the execution court directed delivery of the property based on the sale deed executed. It is under challenge on the ground that no notice as mandated under Rule 16 of Order XXI C.P.C. was issued and that the decree was executed not in compliance with the requirement under that provision. Further, it is submitted that an assignee of the decree is bound to follow the mandate under that provision by issuing notice in execution of the decree both to the transferor and the judgment-debtor. But in the instant case, what is involved is a testamentary succession and hence, the question whether a testamentary succession though involves transfer of interest would come under the purview of Order XXI Rule 16 C.P.C. requires consideration.

(2.) In order to resolve the issue, it is necessary to have an understanding with respect to the scope and ambit of Rule 16 of Order XXI C.P.C., which is extracted below for reference:

(3.) A plain reading of the said provision would make it clear that Rule 16 would operate only when there is a transfer of interest in a decree either in whole or in part by the decree holder either by way of assignment in writing or by operation of law. The wording "by operation of law" stands for transfer effected under the provisions of any law, which may include a court sale, assignment made by the official receiver on behalf of an insolvent debtor and intestate succession. A Will or codicil being a testamentary document though originates from the act of testator would largely come under the sphere of succession, since it would operate only from the moment of death of testator/testatrix and all alienation, conveyance, encumbrance made over the property by the testator/testatrix would stand valid and binding on the subject of the testament and it would operate only with respect to any of the property included in the testament left out at the time of death of testator. Order XXI Rule 16 C.P.C. encompasses two types of transfers - (i) a transfer by assignment in writing and (ii) by operation of law. A document of testamentary succession viz., a Will or codicil, would largely fall under the sphere of transfer "by operation of law", though it involves a transfer by writing. A "transfer by assignment in writing" may have an immediate effect of an "assignment" and would operate with immediate effect which is lacking in the case of a testamentary succession. The scope of the provision is elaborately considered by the Apex Court in Dhani Ram Gupta v. Lala Sri Ram [(1980) 2 SCC 162]. As discussed earlier, a Will or codicil will come into play only on the death of the person concerned, the testator. Till that time, the succession will not operate under the Will or codicil. Further, it will operate only with respect to the property left out and included in the testament at the time of death of testator. Necessarily, the document would fall largely under the sphere of "by operation of law" rather than the act of party by way of a transfer by assignment in writing. The incorporation of the words "transfer by" with the wording "assignment in writing" would show that the legislature never intended to bring up a testamentary succession under the first limb of the said provision. Further, in so far as a testamentary succession is concerned, there is no scope for giving notice to the transferor, as it would operate only on the death of testator/testatrix as the case may be. Further, the requirement under that provision is only perfunctory as against the judgment-debtor or the persons litigating under him. A judgment-debtor who is not litigating under the decree holder cannot insist for notice under that provision though a judgment-debtor is also included under the proviso to the said Rule. The reason behind it is that normally the judgment-debtor may not have any right to interfere with an assignment of decree by the decree holder, unless the judgment-debtor or the persons litigating under him claims right based on any assignment in writing or by operation of law over the decree schedule property either in whole or in part. This might be the reason why the legislature has incorporated "judgment-debtor" also along with "transferor" as the persons entitled to notice under that provision. It is relevant to consider what is laid down by the Apex Court in Dhani Ram Gupta's case (supra). The object of issuing notice to the transferor and the judgment-debtor is to determine the validity of the transfer in the presence of all concerned. In the matter of a testamentary succession, which would operate on the death of testator, the requirement of notice to transferor would pale into insignificance as there is no scope for issuing notice to a dead person, necessarily, the natural legal heirs would step into the shoes of transferor, but only as litigating under the transferor and not in the status of transferor. So the very principle under the provision is not to avoid execution of a decree, but it is only an enabling provision so as to make it possible for an assignee of decree to execute the decree when there is a document of transfer of decree or a transfer by operation of law. Necessarily, it should always be after the decree, otherwise, the option available to the party lies under Sec. 146 of C.P.C..