JAIGOBIND VERMA Vs. TEJPAL SARAWAGI

JUDGEMENT

(1.) The judgment-debtor filed this application challenging the legality of the order dated 5-1-1981 by which the executing Court has allowed the application of the opposite party to be substituted as decree-holders in place of the original decree-holder.

(2.) The suit was filed by Nagarmull Sarawagi against the petitioner for eviction from a building. Nagarmall Sarawagi filed the suit as the agent of the owner of the property, Sagarmull Bhatia. The suit was decreed and Nagarmall Sarawagi levied an execution case, registered as Execution Case No. 24 of 1977. On 28-3-1980, during the pendency of the execution case, Nagarmall Sarawagi died. The petitioner filed an application on 24-5-1980 that as the decree-holder, Nagarmall Sarawagi died, the execution case should be dismissed. On 10-6-1980 a petition was filed on behalf of the opposite party stating therein that they are sons of late Nagarmall Sarawagi and they prayed for substitution of their names in place of the original decree-holders. The petitioner filed a rejoinder slating therein that the petitioner had no locus standi to file the application for being substituted because Nagarmall Sarawagi was only an agent of the real owner of the property and the petitioners being the sons of the agent cannot be substituted. Only the real owner can be substituted in place of Nagarmall Sarawagi. On 16-8-1980 the opposite party filed an application stating therein that by registered sale deed dated 10-6-1975 the owner of the suit property had transferred the same in their favour and they being the owner of the property are entitled to proceed with the execution case. The Court below by the impugned order, after hearing the parties allowed the prayer of the opposite party.

(3.) Mr. N. K. Prasad, learned counsel appearing on behalf of the petitioner submitted that the decree has not been transferred by assignment in writing by Nagarmall Sarawagi in favour of the opposite party nor such transfer has taken place by operation of law as provided under Order XXI, Rule 16 of the Code of Civil Procedure (the Code). The opposite party, therefore, could not be substituted in place of the original decree-holder. Mr. Mazumdar, learned counsel appearing on behalf of the opposite party conceded that this rule has no application to the present case. Under the provision of Section 146 of the Code, he contended, the opposite party has right to execute the decree. To this, Mr. Prasad contended that since the opposite parties are not claiming under the decree-holder, Nagarmall, who was merely an agent of Sagarmall Bhatiya, real owner, that section has no application to the present case.