MATURI KRISHNAMURTY Vs. MATURI LAKSHMINARAYANA

JUDGEMENT

(1.) The facts giving rise to these appeals, which arise out of certain execution proceedings, may briefly be stated: One Maturi Sambasi varao obtained a final decree for recovery of over Rs. 15,000 against Krishnamurty, the appellant herein, in O.S. No. 17 of 1942 on the file of the District Munsif, Rajahmundry.

(2.) This decree was ultimately confirmed by the High Court with slight vaiiation in S.A. No. 2207 of 1952. During the pendency of this appeal, Sambasivarao was adjudged insolvent in I.P. No. 1 of 1950 on the file of the District Court, East Godavari at Rajahmundry with the result that the Official Receiver in whom his propertit.s vested, was impleaded as a party to S.A. No. 2207 of 1952. In the courss of the administration of the estate of the insolvent, the Official Receiver sold his only 1/4th share in the decree in O.S.No. 17 of 1942, ashis sons Lajapathi Raju, Lakshminarayana and Colonal Raju seem to have served him with a notice declaring their intention to become divided with their father, Sambasivarao. Lajapathiraju and Lakshminarayana thereafter filed E.A.No. 926 of 1961 under Order 21, rule 15, Civil Procedure Code, for permission to execute the decree on behalf of their younger brother Colonal Raju also. On the same day they filed two more petitions, E.As. Nos. 925 and 927 of 1961 for transmission of the decree to the Agency Munsif, Bhad- rachlam and for executing the decree to the extent of their 3 /4th share therein. The appellant (judgment-debtor) resisted all these applications contending inter alia that the petitioners are not entitled to any one of the reliefs claimed by them as they are neither decree-holders nor transferees of the decree. The executing Court accepted this and accordingly dismissed all the three applications. The learned Additional District Judge, East Godavari, to whom the matters were taken in appeal and who dealt with all the petitions together, reversed the decision of the executing Court and allowed the appeals holding that the petitioners should be deemed to be transferees of the decree by operation of law as their father was adji'dged insolvent and his 1/4th share in the decree was already sold away ; and that even otherwise, the petitioners' right to execute the decree cannot be questioned having regard to the provisions of sections 146 and 151 of the Code of Civil Procedure. Aggrieved by this decision, the judgment-debtor has preferred these appeals.

(3.) The only question that arises for consideration is as to whether the respondents are entitled, in law, to execute the decree in O.S. No. 17 of 1942 to the extent of their 3/4th share therein. It is contended for the appellant that the respondents, not being decree- holders within the meaning of section 2 (3) or any other provision of the Code, are not entitled to execute the decree even to the extent of their 3/4th share therein. It is only the decree-holder that can ordinarily apply for execution of a decree under the provisions of the Code. Where, however, there is a transfer of the decree by assignment in writing or operation of law, the transferee is allowed to execute the decree under Order 21, rule 16, Civil Procedure Code. Order 21, rule 15 (1) likewise provides that where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or where any of them has died, for the benefit of the survivors and the legal representatives of the deceased. The respondents are admittedly not decree-holders within the meaning of section 2 (3) of the Code as they are not persons in whose favour the decree has been passed. Let us see if they are at least transferees under Order 21, rule 16. This rule, in so far as it is relevant for our purpose, reads :-