NARAYANA PILLAI NARAYANA PILLAI Vs. ERAVI NARAYANA PANICKER

JUDGEMENT

(1.) This second appeal has been preferred by the first defendant and arises out of an order in execution. The original decree holder was one Kesava Panicker. The first execution petition was filed by him. After that he passed away. His legal representatives were impleaded as additional decree holders 2 to 7. The rights of Nos. 3 to 7 were assigned to two persons. They filed the execution petitions seeking to execute the whole of the decree for the benefit of all the decree holders impleading decree holder No. 2 also as a party. Objections were raised by the first defendant. The objections pressed are (1) that the assignee decree holders who seek to execute by themselves are not competent to execute the decree, and (2) that execution cannot be allowed without production of a succession certificate as regards personal reliefs. Both the lower courts rejected these objections.

(2.) We will first of all deal with the maintainability of an execution application by assignees of the rights in a portion of the decree. Here the assignees obtained only the rights of decree holder Nos. 3 to 7. But what they sought was the execution of the decree as a whole for the benefit of themselves and decree holder No. 2 who was also impleaded as a party. Now what is contended on behalf of the appellant is that when it is a question of the assignees representing only a part of the interest in the decree without the junction of the other decree holders representing the other part they have no right to execute. It is pointed out that O.21 R.15 and 16 of the Civil Procedure Code do not recognise any such right. O.21 R.15 which deals with the application for execution by a joint decree holder and R.16 which deals with the application for execution by transferee of a decree are as follows:

(3.) Coming to the decisions cited on the point, in Bhaggwant Balajiran v. Bajaram Sajnaji (AIR 1947 Bombay 157) the execution court held that an application filed by the assignee of the decree holders right was not maintainable as the assignment was only of a portion of the right under the decree. The learned District Judge in appeal held that the nature of the assignment there was such as in effect transferred the entire interest in the decree holder. When the matter was taken up to the High Court, Rajadhyakaha, J., disposed of the matter by accepting the interpretation placed on the assignment by the District Judge and did not discuss the question as to whether there was any disability placed upon the assignee of a portion of the right under the decree. Macklin, J., at page 159 observed as follows:-