MATHAI Vs. JOY

JUDGEMENT

(1.) The question for decision in this C. R. P. is whether a transferee executing court is competent to permit the legal representatives of the deceased decree holder to continue the execution proceedings without obtaining an order under O.21 R.16 C. P. C. from the court which passed the decree.

(2.) The decree in the present case was passed by the Munsiff's Court, Punalur for recovery of a sum of Rs. 4136/- and interest thereon from the judgment debtors. The decree was transferred for execution to the Munsiff's Court, Ettumanoor. The decree holder died on 14-4-1985 after instituting execution proceedings in the Munsiff's Court, Ettumanoor. The children of the decree holder filed two applications in the execution Court E. A. 57/85 and E. A. 152/85 for bringing them on record as the legal representatives of the deceased decree holder and to permit them to continue the execution proceedings. The transferee execution court by order dated 21st December, 1985 allowed these petitions and permitted the legal representatives to continue the execution proceedings. It is against this, the judgment debtors have come up in revision.

(3.) S.42 of the C. P. C. enacts that a court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. This general power of the transferee executing court is subject to sub-s.(4) wherein it is expressly provided that a court to which a decree is sent for execution shall not have the power to order execution at the instance of the transferee of the decree. O.21 R.16 C. P. C. empowers the transferee of a decree by assignment in writing or by operation of law to apply for execution of the decree to the court which passed the decree and that court will permit the decree to be executed in the same manner and subject to the same conditions as if the application were made by the decree holder himself. It is clear from R.12 of O.22 that the provisions of R.3, 4 and 8 of the said Order do not apply to execution proceedings and the transferee executing court cannot by recourse to these provisions of O.22 bring on record the legal representatives of a deceased decree holder and permit them to continue the execution proceedings.