Omprakash Trivedi, J. - (1.) As both these appeals arise out of the same judgment passed by the court below it will be convenient to dispose of them by one judgment. The material facts giving the to these appeals may be stated as follows : Sheikh Bechai had sold his house to Sheikh Riyazul Haq and others and at the same time they in their turn executed a deed of agreement in favour of Sheikh Bechai promising to reconvey the transferred property upon payment of a sum of Rs. 5000/- to the vendees by Bechai within a period of ten years. Bechai filed a suit for specific performance of the contract and reconveyance and obtained a decree against the vendees Riyazul Haq and others on 4-5-1949. The first and second appeals filed against the decree were dismissed and the decision of the trial court was maintained. Thereupon Bechai decree-holder made an application for execution of the decree for specific performance of the contract for reconveyance of property to him. While his application for execution was pending on 12-12-1962 he transferred the decree for a sum of Rs. 12,000/- in favour of Dr. Abdul Rahman, respondent No. 1 of Appeal No. 29 of 1963 and No. 4 of the other appeal. On 15-2-1963 Dr. Abdul Rahman filed an application before the execution court praying for substitution of his name in place of the decree holder Bechai and for permission to continue the execution proceedings. On 23-3-1963 the decree holder Bechai made a statement before the execution court praying for dismissal of the execution application on the ground that he had transferred his lights under the decree to Dr. Abdul Rahman. The judgment-debtors filed an objection which purports to be under Section 47 of the Cod of Civil Procedure taking the plea that the light of the decree-holder Bechai was not transferable and Dr. Abdul Rahman was not entitled to be substituted in the present execution proceedings. This objection was dismissed by the execution court and the prayer of Bechai for dismissal of his pending application for execution was also rejected. Thereupon both Bechai and the judgment-debtors filed appeals which were dismissed by the Civil judge. It is in these circumstances that Bechai and judgment-debtors Riyazul Haq and others come to this Court in second appeal.
(2.) In so far as the appeal of Bechai decree-holder is concerned I think it is devoid of any merit in as much as there is nothing which may be contrary to law or procedure in the order of the court below refusing to accept his prayer for dismissal of the application for execution which was pending at his instance. It was clear from his own statement that he had transferred whatever interest was possessed by him in the decree in favour of Dr. Abdul Rahman from which it followed that he had no subsisting interest in the decree and if the transfer of the decree in favour of Dr. Abdul Rahman was valid then the Court was entitled in law to permit continuance of the execution proceedings at the instance of the assignee of the decree. After the transfer the decree-holder Bechai not possessing any subsisting interest could not claim before the executing court as a matter of right for the dismissal of his application for execution which was pending at his instance becuase in law under Section 146 of the Code of Civil Procedure his transferees and assignees were entitled to step into his shoes and to apply to the Court for permission to continue the execution in place of the decree-holder. The appeal of Bechai, therefore, has no legs to and upon and must fail.
(3.) Coming now to the other appeal, at the instance of Riyazul Haq, Mazharul Haq and Smt. Momina Khatoon, the judgment-debtors of the decree which has been transferred in favour of Dr. Abdul Rahman, learned counsel for the appellants made two points : The first submission is that on the execution side there is no provision in the Code of, Civil Procedure for substitution of the name of a legal representative or assignee of a decree-holder and, therefore, the court below erred in allowing the prayer for substitution of the name of Dr. Abdul Rahman in place of Bechai, the original decree-holder. For this argument learned counsel relies on the case of Baij Nath v. Ram Bharos, AIR 1927 Allahabad 165 decided by a Full Bench of this Court. It was observed by the Bench in that case. "There is no rule of law which enables the legal representative of a deceased decree-holder to apply for mere substitution of name. He must apply whenever he does apply for fresh execution of the decree vide Order 21 Rule 16 of the Civil Procedure Code." I am of the opinion that this Full Bench decision does not apply to the present case because in that case the legal representative of the deceased decree-holder had not applied for permission to continue the pending execution. He had applied merely for his substitution in place of the deceased decree-holder and for revival of the execution which had been consigned to records In the circumstances the question did not arise before the Court as to whether the legal representative of the deceased decree-holder or the assignee of a decree-holder can take advantage of a pending application for execution and whether with substitution of his name he can apply for continuing the same execution. In other words, the Court did not deliver itself at all on the question whether in a case of this kind where the legal representative or the assignees of a decree-holder applies for permission to continue a pending execution even then it would be incumbent for the legal representative or the assignee to apply for fresh execution. In the present case Dr. Abdul Rahman respondent, the assignee of the degree-holder, not only applied for substitution of his name in favour of the decree-holder but also for permission to continue the execution. This question was directly dealt with and decided by a Division Bench of this Court in Niadar v. Khazan, AIR 1930 Allahabad 604 . It has held that where a. decree-holder after putting. his decree in execution and while the decree is in execution, dies, his sons need not make a fresh application but after applying for substitution of their names can continue with the previous execution. In this case they relied upon an earlier decision of this Court in Mohan Singh v. Jagat Singh, AIR 1928 Allahabad 299 in which it was held that an application for substitution of names in execution proceedings is a step-in-aid and there is no bar under any of the rules of Schedule 1 of the Code of Civil Procedure to substitution of names by an execution court when an execution proceeding is already pending. In the case of B. Mahabir Prasad v. B. Raja Mohan Manucha, AIR 1946 Oudh 154 the view was taken that if the decree-holder dies and his legal representatives make an application praying that they may be substituted as representatives under Order 21 Rule 16 the supplication is sufficient compliance with the provisions of Order 21 Rule 16 in as much as the prayer in the application amounts to a prayer not only to be brought on record but also to be allowed to proceed with the execution proceedings and that no fresh application for execution is, therefore, necessary. I am in respectful agreement with the view expressed in these latter cases. Order 22 Rule 10 (1) of the Code of Civil Procedure provides that in cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. Rule 12 of Order 22 of the Code of Civil Procedure says : "Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order." It is clear that Rule 12 does not exclude the application of Rule 10 to execution proceedings. I am, therefore, of the opinion, that the provision contained in Order 22 Rule 10 is equally applicable to execution proceedings as it is to a suit and, therefore, the legal representative or assignee of a decree-holder can with the Court's permission continue pending execution and need not apply for fresh execution. Similar view was taken by the Bombay High Court in the case of Krishnaji Ramchandra v. Bhikchand Ramkaran, AIR 1942 Bombay 82 . If such a view were not taken and one were to hold that the legal representative or assignee of a decree-holder cannot take advantage of or continue pending execution and must apply for fresh execution then it may lead to irreparable hardship. A mischievous decree-holder they delay and defeat execution of the decree for 12 years and if the decree-holder suddenly dies after this period his legal representatives and assigness would not be able to reap the fruits of the decree obtained by their predecessor if they cannot continue the execution which was filed at the instance of the decree-holder and happens to be pending and if they must always file a fresh application for execution. It is to prevent such a disastrous result that Order 22 Rule 10 appears to have been enacted. I hold that the present case is not governed by the decision in Baij Nath v. Ram Bharos, AIR 1927 Allahabad 165 and that there is no force in the appellants' agrument that Dr. Abdul Rahman was not entitled to substitution in place of Bechai and could not continue the pending execution. The objections were rightly dismissed by the Courts below.;