( 1 ) THE fifth respondent in E. P. 209 of 1957 in O. S. 28 of 1944, a petition for delivery of possession of certain properties, is the appellant herein.

( 2 ) ONE Ponnammal, through her power of attorney, Nataraja Asari, the contesting respondent herein, filed a suit O. S. No. 28 of 1944, Sub Court, Madurai, against 29 defendants for delivery of possession. A decree was passed on 16-4-1944. Defendant 28 filed an appeal, A. S. 290 of 1945. Pending the appeal on 9-3-1947 Ponnammal transferred all her rights in favour of the respondent, Nataraja Asari for Rs. 8350. On 16-7-1947 Ponnammal died, and Nataraja Asari was brought on record in the appeal. One Lakshmanan claimed that he was entitled to come on record as the legal representative through a will left by Ponnammal. Lakshmanan was also brought on record in the appeal. A. S. No. 290 of 1945 preferred by the 29th defendant was dismissed on 9-8-1950.

( 3 ) NATARAJA Asari sought to execute the decree by filing E. P. 373 of 1950. He prayed for delivery of properties. This petition was opposed by Lakshmanan, who claimed that he was the legal representative of the deceased Ponnammal. Lakshmanan filed a memorandum of objection and contested the right of the petitioner to execute the decree, and the executing court found that the dispute between Nataraja Asari and Lakshmanan cannot be gone into under S. 47 C. P. C. It also held that Nataraja Asari was not an assignee decree holder and therefore could not execute the decree.

( 4 ) NATARAJA Asari filed O. S. 17 of 1952 in the Sub Court, Madurai for a declaration that he was entitled to execute the decree. The suit was dismissed by the Sub court on 19-10-1953. Nataraja Asari preferred an appeal, A. S. 142 of 1954 of the high Court. The appeal was compromised and a compromise decree was passed in which Nataraja Asaris right to execute the decree was recognised. Subsequently another execution petition E. P. 181 of 1954 was filed by Nataraja Asari on 8-71954 and that execution petition was dismissed on 30-10-1954. E. P. 209 of 1957, out of which the present second appeal arises, was filed on 14-9-1957.

( 5 ) E. P. 209 of 1957 is sought to be resisted on two grounds. It is stated that E. P. 373 of 1950 was not in accordance with law and that Nataraja Asari was not an assignee decree holder, who could execute the decree under Or. 21 rule 16 C. P. C.

( 6 ) IT was submitted that in E. P. 373 of 1950 it was decided that the dispute was not one under S. 47 C. P. C. and that Nataraja Asari was not an assignee decreeholder. A faint suggestion was made that the order in E. P. 373 of 1950 could operate as res judicata for any further claim by Nataraja Asari as assignee decreeholder. This contention cannot be upheld, for Nataraja Asari filed a suit O. S. 17 of 1952 for declaration of his rights and he succeeded in getting his rights declared as the person entitled to execute the decree in A. S. 142 of 1954. It was then contended that the petition was not one in accordance with law. This contention is based on the ground that the claim of Nataraja Asari as the assignee decreeholder was not accepted in E. P. 373 of 1950. In Rajitagiripathi v. Bhavani sankar. AIR 1924 Mad 673, a Bench of this Court considered the case where persons claiming to be the assignee decreeholders filed an execution petition on 26-7-1919. In the petition the decreeholder prayed for recognising the transfer and for executing the decree. That petition was dismissed, because the execution of the decree had been stayed. It is in the subsequent proceedings the right of the transferee decreeholders was negatived. It was held that at the time when the application was made they were the transferee decreeholders by assignment from the original decreeholders and as such the proper persons to execute the decree. Thus it will be seen an execution petition by an assignee decreeholder, even though his rights as transferees were subsequently negatived the petition was held to be a step-in-aid of execution. Their Lordships expressed the view that until the assignment was held to be invalid, the transferees were the persons entitled to execute the decree.

( 7 ) IN Bhubaneswar v. Lokenath Imam C.J., as he then was, held that it should make no difference that the claim that the applicant was the transferee was ultimately rejected, and that the provisions of Art. 182 of the limitation Act did not speak of the application to execute the decree being made by the decree holder himself. In the case cited two persons Jhunjunwala and manpania filed execution petitions claiming as trustees of the decreeholder. The application were in conformity with the provisions of Or. 21 rule 16 C. P. C. They subsequently did not succeed in proving that they were the trustees and therefore it was contended that the applications were not in accordance with law as they purported to execute a decree to which they were strangers. On the facts it was held that it would make no difference if the claim of the applicant as a transferee was ultimately rejected.

( 8 ) IN Gundicha Padhano v. Parvati Podhanuni, it was held that when the execution application is filed making mention therein about the factum of transfer the application is in accordance with law. It rejected the contention that unless the transfer is proved the execution application would not be in accordance with law. It rejected the contention that unless the transfer is proved the execution application would not be in accordance with law. Even though the execution application was dismissed as the decreeholder failed to appear and prove the fact of transfer the application was held to be one in accordance with law within the meaning of Art. 182 (5) of the Limitation Act.

( 9 ) THE cases cited above are sought to be distinguished on the ground that in E. P. 373 of 1950, the petitioners claim for recognising him as the assignee decreeholder was rejected. This fact would not make any difference, as he did claim by virtue of an assignment of the property in his favour and in fact did succeed in establishing in the appeal that he was the person entitled to execute the decree, whereas in the cases cited above the applicant did not succeed in proving that he was the assignee of the rights of the decreeholder. Therefore, the contention of the learned counsel for the appellant that E. P. 373 of 1950 is not in accordance with law and cannot be taken as a step-in-laid of execution, cannot be accepted.

( 10 ) IT was next contended that the respondent, Nataraja Asari, cannot be said to be an assignee decreeholder and therefore cannot avail himself of Or. 21 rule 16 c. P. C. and that, as the transfer by the decreeholder was after the decree was passed, he could not maintain an execution petition even under S. 146 C. P. C. Nataraja Asari claims to execute the decree on the basis of the transfer by ponnammal of all her rights in the property pending the appeal in the High Court. It is not a transfer of the rights of the decree in writing as required under Or. 21 rule 16 C. P. C., but is a transfer of the property after the decree was passed without transferring the rights in the decree.

( 11 ) IN Hansraj Pal v. Mukhraji Kunwar, (1907) ILR 30 All 28, it was held that when a decreeholder for possession of immovable property sells a portion of such property, the sale does not give the purchaser any right to execute the decree. In the case cited, the decreeholder sold a portion of the property to different persons, and one of the persons, who purchased the property, sought to execute the decree on the ground that the decree was transferred to him to the extent of the property mentioned in the sale deed. On a consideration of the sale deed the Court held that he did not purport to sell or transfer the decree and that a sale of property for possession from a person, who had obtained a decree did not necessarily carry with it an assignment of the decree itself, and an application for execution under s. 132 (corresponding to the present rule 16 Order 21) could not be maintained.

( 12 ) IN Perumal Naidu v. Marukrithammal, AIR 1927 Mad 240 [LQ/MadHC/1926/375] the decision in (1907) ILR 30 All 28 was cited with approval. It was held that a purchaser of property included in a decree did not become the assignee decree holder and did not get the right to execute the decree or to get possession of the property purchased by way of execution. The two decisions (1907) ILR 30 All 28 and AIR 1927 Mad 240 [LQ/MadHC/1926/375] are authorities for the proposition that the purchaser of a property included in the decree is not an assignee decree holder and cannot maintain an application under Or. 21 rule 16 C. P. C. The two decisions did not consider the question whether the purchaser of the property included in a decree can execute the decree under Sec. 146 C. P. C. This question was elaborately considered by the Supreme Court in Jugalkishore v. Raw Cotton Co; AIR 1955 SC 376 [LQ/SC/1955/22] . Two persons named Mohamedali Sahib and Sakherkhanoo Mohamed Ali Habib carrying on business in the name and style Habib and Sons instituted a suit against one jugalkishore Saraf for recovery of Rs. 7113-7-0 with interest. When the suit was pending, on 7-2-1949, the partners of the plaintiff company executed a transfer to messrs Raw Cotton Co. transferring all their interests. The company did not get themselves substituted as plaintiff but allowed the suit to be continued in the name of the original plaintiffs. A decree was passed on 15-12-1949 for a sum of Rs. 8918-7-0 in favour of Habib and Sons, the plaintiffs on record. On 25-4-1951, messrs Raw Cotton Co. presented an execution petition under Or. 21 rule 11 c. P. C. praying that the court be pleased to declare them as the assignees of the decree. The court issued a notice under Or. 21 rule 16 to Habib and Sons, the decreeholders on record, and Jugalkishore Saraf who was the defendant judgment-debtor, requiring them to show cause why the decree should not be executed. The trial court have leave to the company to execute the decree against the judgment debtor. It was contended before the Supreme Court that Raw Cotton co. were not the transferees of the decree within the meaning of Or. 21 rule 16 c. P. C. and that they could neither execute the decree under S. 146 C. P. C. The supreme Court held that as the document of transfer in favour of Raw Cotton Co. did not cover the decree, which was no room for the application of equitable principles and the company could not claim to come under Or. 21 rule 16 C. P. C. as transferees by operation of the law and therefore could not maintain an application for execution.

( 13 ) THE Supreme Court next considered the question whether an execution "either the respondent company are transferees of the decree by an assignment in writing or by operation of law, in which case they fall within Or. 21 rule 16 C. P. C. or they are not such transferees, in which event, they may avail themselves of the provisions of S. 146 if the other condition is fulfilled. The above passage indicates that the transferees who do not fall under Or. 21 rule 16 C. P. C. may avail themselves of the provisions of S. 146. The court proceeded to observe at page 394--"there is nothing in Or. 21 Rule 16 which expressly or by necessary implication, precludes a person, who claims to be entitled to the benefit of a decree under the decree-holder but does not answer the description of being the transferee of that decree by assignment in writing or by operation of law, from making an application which the person from whom he claims could have made. A person who claims to be entitled to the benefit of the decree but who does not answer the description under Or. 21 rule 16 is not precluded under Or. 21 rule 16 C.P.C. from making an application which the person, from whom he claims, could have made as provided for under S. 146 C. P. C. The passage cited is wide enough to include a person claiming the benefit of a decree by assignment of the property after a decree is passed, though the particular case before the Supreme Court related to a transfer of the rights of the decree-holder before a decree was passed. The Supreme Court took the view that unless there is a specific prohibition under or. 21 rule 16, the provisions of S. 146 C. P. C. could be availed of. As an illustration the Court pointed out that the rule prohibited one of the judgment debtors, to whom the decree for payment of money had been transferred, from making an application for execution as a person claiming under the decree holder. The Court further observed that a person might conceivably become entitled to the benefits of a decree without being a transferee of the decree by assignment in writing or by operation of law, and that in that situation the person so becoming the owner of the decree might well be regarded as a person claiming under the decreeholder. This passage supports the view that a person, who becomes entitled to the benefits of the decree after the decree is passed is not entitled (precluded) from invoking the provisions of S. 146 C. P. C. The question that has to be ascertained according to the Supreme Court is as to whether an assignee has any right title or interest in the decree and whether he can be said to be a person claiming under the decreeholder.

( 14 ) IN a subsequent decision reported in Saila Bala Dasi v. Nirmala Sundari Dasi, , the Supreme Court held that S. 146 C. P. C. was introduced with the object of facilitating the exercise of rights by persons in whom they come to be vested and being a beneficent provision should be construed liberally so as to advance justice and not in a restricted or technical sense.

( 15 ) THE decision in AIR 1955 SC 376 [LQ/SC/1955/22] was considered by the Andhra Pradesh High court in Satyanarayana v. Arun Maik, The Andhra High Court in considering a case where the subject matter of a decree was transferred after the decree was passed held that the transferee could continue the execution petition if it was already filed by the transferee decreeholder or could file a fresh execution petition on the ground that he was such a transferee under S. 146 C. P. C. and that the provisions of Or. 21 rule 16 would not preclude the transferee from carrying on the execution of the decree obtained by his transferor, the subject matter of which was subsequently transferred. The same view was expressed by the Patna High court in Ramnath v. Anardei Devi, The Patna High Court held that a person who has become entitled to the benefits of the decree not by virtue of the decree of assignment in writing but by virtue of the transfer of the property which is the subject matter of the property which is the subject matter of the decree in his favour, is entitled to execute the decree under S. 146 C. P. C. In Mani Davasia v. Kerala High Court held that an oral assignment of the decree in favour of the assignee was a valid transaction and that even though the assignee would not come within the purview of Order 21, Rule 16 his competency to make an application to execute the decree under S. 146 could not be denied.

( 16 ) A different view is expressed by Jagadisan J. in Sampath Mudaliar v. Sakuntalammal, 1964-2 Mad LJ 563. The learned Judge took to view that the supreme Court did not hold that after the passing of a decree, any transfer, though not in form a transfer of the decree, would yet enable the transferee to proceed under S. 146 by passing the provisions of Or. 21 rule 16 C. P. C. According to the learned Judge, the true principle is that a decree cannot be executed by anybody other than the decreeholder except by an assignee who satisfies the requirements of Or. 21 rule 16 and S. 146 C. P. C. cannot have the effect of overriding the provisions of Or. 21 rule 16. With respect, I am unable to share the view taken by the learned Judge. The passages extracted from the Supreme Court case in this judgment would show that the Supreme Court intended to lay down that transferees, if they do not fall within the provisions of Order 21 rule 16, may avail themselves of the provisions of S. 146. The language used by the Supreme Court is wide enough to include a transferee of the property after the decree is passed. The same view was taken by the Andhra Pradesh, Patna and Travancore high Courts and I am in respectful agreement with the view taken by these courts i regret my inability to accept the interpretation put by Jagadisan J. on the decision in AIR 1955 SC 376 [LQ/SC/1955/22] .

( 17 ) IN the result the contention of the learned counsel that E. P. 373 of 1950 was not in accordance with law and that Nataraja Asari being an assignee of the property after the decree passed is not entitled to maintain an execution petition cannot be accepted. The appeal is dismissed with costs. Leave granted. Appeal dismissed.