RAGHUVIR SARAN VERMA Vs. SPECIAL JUDGE, MATHURA

JUDGEMENT

(1.) PETITIONER was the tenant of a premises of which Smt. Khitto was the landlady. She filed a suit for eviction of the petitioner and arrears of rent in 1976. During the pendency of the suit Smt. Khitto transferred the premises to Shri Ashok Kumar, who thereafter transferred to Sri Sushil Kumar, the respondent No. 3. Both Ashok Kumar and Sushil Kumar were impleaded as co-plaintiffs in the aforesaid suit and the suit was ultimately decreed on 1.9.1980 and a decree of eviction against the petitioner and for arrears of rent was passed. Execution of the decree was, however, stayed on 13.3.1981 in the writ petition filed by the petitioner before this Court. This writ petition was dismissed on 2.11.1988. During all this period the decree for eviction of the petitioner could not be executed on account of the stay order. During the pendency of the writ petition of the petitioner before this Court, Sri Sushil Kumar transferred the premises to Sri Yogesh Kumar on 17.1.1984 and Sri Yogesh Kumar has moved an application on 29.9.1984 for being added as a decree-holder in the execution proceedings. After the writ petition of the petitioner was dismissed on 2.11.1988, the execution proceedings were taken up along with aforesaid application of Sri Yogesh Kumar. Sri Yogesh Kumar did not press his application for addition as a decree-holder in the execution proceedings. This application was accordingly dismissed as not pressed.

(2.) THE petitioner-judgment debtor has filed an objection before the execution Court to the effect that the last transferee, Sri Yogesh Kumar, has not been added/impleaded as a decree-holder in the execution proceedings and as such, the original decree-holder, namely, Sushil Kumar cannot continue with the execution proceedings and the execution has to be struck off. This objection was rejected by the execution Court and a revision filed by the petitioner has also been dismissed. Against these orders the petitioner has filed this writ petition. At the time of admission the respondents have been served and the writ petition is being decided finally in accordance with the Rules of the Court.

(3.) RULE 16 of Order 21 of the Code of Civil Procedure enables the transferee of a decree to apply for execution of the said decree. However, it is not mandatory for the transferee to move an application for execution of the decree and the original decree-holder even after the transfer of the property can carry on the execution without impleading the transferee. The execution cannot be struck off merely on the ground that the transferee has not applied for impleadment/addition as the decree-holder in the execution proceedings. A Division Bench of this Court in Umrao v. Pahlad Singh, AIR 1935 Allahabad 1001, has laid down that Order 21, Rule 16 merely provides that where the interest of any decree-holder is transferred by assignment, transferee may apply for execution of the decree but it does not debar the original decree-holder from executing the decree. This relevant extract of the aforesaid judgment is quoted below :-