R.A.SHARMA, J. - (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. Learned counsel for the petitioner has argued that in view of Order 21, Rule 16 of the Code of Civil Procedure, after the transfer of the property in dispute, the original decree-holder cannot carry on the execution and it was only the transferee, who has a right to execute the decree, and as the application of the transferee for impleadment as a decree-holder in the execution proceedings has been rejected as not pressed, execution proceedings are liable to be rejected.
(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 :- "Order 21, Rule 16, merely says that where the interest of any decree-holder in a decree is transferred by assignment the transferee may apply for execution of the decree to the Court which passed it. There is nothing in the provisions of Order 21, which debars the original decree-holder whose name appears on the face of the record, from executing the decree merely because there has been some assignment out of the Court which has not yet been recognised by the execution Court. We, therefore, dismiss the appeal with costs." This judgment has been followed by this court in Kishore v. Guman, AIR 1978 Allahabad 1. This Court in Mithan Lal v. Thana, AIR 1964 Allahabad 337 has reiterated the same position and the relevant extract is quoted below :- "It is not necessary that upon the transfer of a decree by the decree-holder to a third party during the pendency of execution proceedings, the transferee must be brought on the record in order to enable the execution proceedings to continue. The execution proceedings can continue in the name of the original decree-holder, in spite of the transfer. This was the view taken by this Court in Banke Behari Lal v. Raghubar Dayal, AIR 1930 Allahabad 380." In D. Lal Smt. v. S. Devi, 1974 ALJ 332, this Court has held that the transfer of the property in question after the decree conveyed the right under the decree and transferee can also execute the decree under Section 14-C and it is not necessary for him to take recourse to another series of litigation. This principle has been given legislative recognition by means of the explanation added to Rule 16 of Order 21 of the Code of Civil Procedure. What was implicit has been made explicit by the explanation.;