VAISHNO DEVI CONSTRUCTION REP. THR. SOLE PROPRIETOR (D) THR. LRS & ANR. versus UNION OF INDIA & ORS. on 21 October 2021

VAISHNO DEVI CONSTRUCTION REP. THR. SOLEPROPRIETOR (D) THR. LRS & ANR.

v.

UNION OF INDIA & ORS.

(Civil Appeal No. 18278 of 2017)

OCTOBER 21, 2021

[SANJAY KISHAN KAUL AND B. R. GAVAI, JJ.]

Code of Civil Procedure, 1908 – Or.XXI, r.16 – Execution ofDecrees and Orders – Application for execution by transferee ofdecree – Addition of the Explanation to Or.XXI, r.16 of the CPC,pursuant to recommendation made by the Law Commission of Indiain its 54[th] Report on the CPC in 1973 – The Explanation was insertedby Act 104 of 1976 [Code of Civil Procedure (Amendment) Act,1976] w.e.f. 01.02.1977 – In Jugalkishore Saraf case, it was heldthat Or.XXI, r.16 contemplates the actual transfer of the decree byan assignment in writing executed “after the decree is passed” andthus, while a transfer of or an agreement to transfer a decree thatmay be passed in future may, in equity, entitle the intending transfereeto claim the beneficial interest in the decree after it is passed, suchequitable transfer does not relate back to the prior agreement anddoes not render the transferee a transferee of the decree by anassignment in writing within the meaning of Or.XXI, r.16 – Whetherthe subsequent amendments to Or.XXI, r.16 changed the position oflaw as laid down in Jugalkishore Saraf case – Held: The Explanationwas so added due to conflicting High Courts’ decisions on thequestion, i.e., whether a person who does not have a writtenassignment of the decree, but who has succeeded to a decree holders’right, is entitled to such decree u/s.146 CPC – The Law Commissionrecommended amending Or.XXI, r.16 to clarify that it does not affectthe provisions of s.146 CPC and that a transferee of rights in thesubject matter of the suit can obtain execution of a decree withoutseparate assignment of the decree – The objective appears to be tonot have multifarious proceedings to determine the issue ofassignment, but to determine the issue of assignment in the executionproceedings itself – The objective of amending Or.XXI, r.16 byadding the Explanation was to avoid separate suit proceedings beingfiled therefrom and to that extent removing the distinction between

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Aan assignment pre the decree and an assignment post the decree –Once the legislative intent is clear, and the law is amended, then theearlier position of law cannot be said to prevail post the amendment– The Explanation clearly stipulates that nothing in Or.XXI, r.16 ofthe CPC would affect the provisions of s.146 and the transferee ofthe right in property which is subject matter of a suit may apply forBexecution of the decree without separate assignment of the decreeas required by law – Decree.

Allowing the appeals, the Court

HELD: 1.1. It is an admitted position that the ExplanationCwas added to Order XXI Rule 16 which did not exist earlier,pursuant to the recommendations made by the Law Commissionof India in its 54[th] Report on the Code of Civil Procedure, 1908.The Explanation was so added due to conflicting High Courts’decisions on the question, i.e., whether a person who does nothave a written assignment of the decree, but who has succeededDto a decree holders’ right, is entitled to such decree under Section146 of the CPC. [Para 24][70-A-B]

1.2. The Law Commission recommended amending OrderXXI Rule 16 to clarify that it does not affect the provisions ofSection 146 CPC and that a transferee of rights in the subjectEmatter of the suit can obtain execution of a decree withoutseparate assignment of the decree. The objective appears to beto not have multifarious proceedings to determine the issue ofassignment, but to determine the issue of assignment in theexecution proceedings itself. [Para 25][70-D-F]

F2. The objective of amending Order XXI Rule 16 of theCPC by adding the Explanation was to avoid separate suitproceedings being filed therefrom and to that extent removingthe distinction between an assignment pre the decree and anassignment post the decree. Thus, what has been discussed evenin the judgment in Jugalkishore Saraf as a view based on theGequitable principle was sought to be incorporated in Order XXIRule 16 of the CPC by adding the Explanation, something whichhad not been done earlier. Once the legislative intent is clear,and the law is amended, then the earlier position of law cannot besaid to prevail post the amendment. [Para 26][70-F-G; 71-A-B]

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3. While considering the divergent views of the HighCourts, the Law Commission took note of the fact that twodifferent interpretations of Jugalkishore Saraf had been adopted.Thus, the Law Commission really sought to clarify the legalposition so that the conflicting interpretation of the SupremeCourt judgment would not survive. The Explanation clearlystipulates that nothing in Order XXI Rule 16 of the CPC wouldaffect the provisions of Section 146 and the transferee of the rightin property which is subject matter of a suit may apply forexecution of the decree without separate assignment of the decreeas required by law. [Para 27][71-B-D]

Jugalkishore Saraf v. M/s. Raw Cotton Co. Ltd.AIR 1955 SC 376:1955 SCR 1369 – referred to.

Penniah Pillai v. T. Natarajan Asari AIR 1968 Mad190; K.N. Sampath Mudaliar v. Sakunthala Ammal 19642 MLJ 563; Prabhashinee Debi v. Rasiklal Banerji1931 ILR 59 Cal 297; Purna Chandra Bhowmick v.Barna Kumari Devi AIR 1939 Cal 715; Satyanarayanav. Arun Maik AIR 1955 AP 81; Ramnath v. AnardeiDevi AIR 1964 Pat 311 and Mani Devasia v. VarkeyScaria (1960) Ker. LT 1077 – referred to.

Case Law Reference

1955 SCR 1369referred toPara 16

CIVIL APPELLATE JURISDICTION: Civil Appeal No.18278of 2017.

From the Judgment and Order dated 13.02.2017 of the High Courtof Calcutta, Circuit Bench at Port Blair in C.O. No.009 of 2017.

With

Civil appeal no.18279 of 2017.

J. K. Mishra, Sr. Adv., Ganesh Subbian, Gautam Singh, KrishnaKumar Singh, Advs. for the Appellants.

M. K. Mondal, K. V. Jagdishvaran, Ms. G. Indira, Habilila Nana,Kamal Behari Panda, Ms. Mrinmayee Sahu, Advs. for the Respondents.

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AThe Judgment of the Court was delivered bySANJAY KISHAN KAUL, J.

1. The contours of the legal controversy which arise forconsideration in the present appeal emanate from the plea of the appellantsclaim based as an assignee of the decree holder in terms of Order XXIBRule 16 of the Code of Civil Procedure, 1908 (hereinafter referred to asthe ‘CPC’) in their application filed under Section 47 of the CPC bytaking recourse to Section 146 of the CPC read with Section 2(1)(g) ofthe Arbitration &Conciliation Act, 1996 (hereinafter referred to as the‘A&C Act’). The significant aspect is the addition of the explanation toOrder XXI Rule 16 of the CPC, which was added pursuant to theCrecommendation made by the Law Commission of India in its 54[th] Reporton the CPC in 1973, which in turn was a sequitur to the conflicting viewsof the High Courts on the matter in issue.

The facts:

The facts:

2. In order to appreciate the controversy, relevant facts are beingDset out. On 29.12.1995, a contract was awarded by the Union of India toone Surendra Nath Kanungo @ S.N. Kanungo for executing the workof extension of runway at Port Blair Airport (hereinafter referred to as‘Works’). Shri S.N. Kanungo passed away in the year 2012 and isrepresented by legal heirs in the present proceedings as respondent Nos.2Eto 7, while respondent No.1 is the contract awarding authority.

3. Shri S.N. Kanungo entered into an arrangement whereby theWorks were assigned to Vaishno Devi Constructions, a sole proprietorshipconcern of Prabhat Bhushan Kanungo (appellant No.1 in CA No. 18278of 2017). It appears that appellant No.2, Surya Prakash Kanungo wasalso taking care of the work. A different part of the work was assignedFto BeeDee Builders, a sole proprietorship of Swapna Das and, onceagain, apparently her husband Bijoy Kumar Das was playing a role inexecuting the Works as the said two parties are impleaded as appellantNos.1 and 2 in CA No. 18279/2017. Shri S.N. Kanungo was a specialclass contractor and it appears from the case set up by the appellantsGthat they were to act on behalf of S.N. Kanungo to carry out the Worksfor which they were to be paid monthly remuneration and hiring chargesof certain equipment that was to be provided by the appellants herein.The appellants claim to have supervised the work of extension of runwayon behalf of Shri S.N. Kanungo but apparently some part of their dueswere not paid. Shri S.N. Kanungo is stated to have executed anH

Assignment Deed along with a cheque in favour of Mr. Prabhat BhushanKanungo for Rs.1 crore as security on 27.10.1999 to secure payment ofsuch dues. The claims were in respect of both the appellants.

4. It appears that some disputes arose between Shri S.N. Kanungoand respondent No.1 which were referred to arbitration and an awardwas passed in his favour on 22.03.1999. Shri S.N. Kanungo receivedthe money under the award on 28.01.2001.

5. Another reference was made in respect of another set of non-payments claimed by Shri S.N. Kanungo from respondent No.1.Thedispute was referred to the sole arbitration of Shri T.K. Mishra, whopassed an award in favour of S.N. Kanungo on 31.10.2006. RespondentNo.1 filed proceedings before the High Court of Calcutta to set asidethe award under Section 34 of the A&C Act. The proceedings succeededin terms of an order of the learned single Judge of the High Court dated28.09.2007. On appeal being preferred before the Division Bench of theHigh Court, the judgment of the learned single Judge was reversed by ajudgment dated 03.03.2008 and the appeal was allowed.

6. Shri S.N. Kanungo, in order to recover the amount, filed anexecution case before the District Judge, Port Blair, being Other ExecutionCase No.01/2008.During the pendency of the execution proceedings,respondent No.1 filed an SLP in the Supreme Court, being SLP(C)No.21507/2008, challenging the judgment of the Division Bench dated03.03.2008 and seeking stay of the execution proceedings. Notice wasissued and stay of execution proceedings was granted in his favour.During the pendency of the SLP, Shri S.N. Kanungo passed away in2012 and was substituted by his legal heirs in both the SLP and theexecution proceedings. The Supreme Court ultimately dismissed the SLPvide order dated 19.01.2016 making only an alteration of the rate ofinterest while observing that the interest awarded was on the higher sideand, therefore modifying it to 8% (simple interest) from the date of thebill.

7. It is at that stage that the appellants in the two appeals beforeus came into the proceedings by filing objections in the form of anapplication under Section 47 read with Order 22 Rules 1&2 of the CPCread with Sections 2(1)(g) and 36 of the A&C Act.

8. The claims made by the appellants were on the basis of anassignment made by Shri S.N. Kanungo and, thus, sought to keep anyorder for release of the amount in abeyance in full or in part to protect A

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Atheir interests. It appears that the prayer for interim relief did not succeedas the applications were dismissed on 08.04.2016.Ultimately on26.12.2016, both sets of objections claiming a right in the decretal amountwere also rejected by the executing court on the basis that the AssignmentDeed and cheque had not been proved in those proceedings to establishthe fact of assignment. It may, however, be noted that there was no trialBin this matter before the executing court.

9. The aforesaid order was then sought to be assailed before theCalcutta High Court by filing a civil revision petition which was dismissedvide impugned judgment dated 13.02.2017. On the SLP being preferred,notice was issued on 17.04.2017 and a direction to maintain status quoCwas also simultaneously issued pending disposal of the matter. Since thedispute between the two sets of private parties would cause liability ofinterest on respondent No.1, in terms of order dated 06.03.2018, therequest of respondent No.1 to deposit the decretal amount in theexecuting court was accepted. One would presuppose that this amountDwould be kept in an interest-bearing deposit.

Appellants’ Submissions:

10. Learned counsel for the appellants sought to contend that theappellants were the authorised assigned representatives of Shri S.N.Kanungo. They relied on the amended provisions contained in Order 21ERule 16 of the CPC in their application under Section 47 of the CPC bytaking recourse to Section 146 of the CPC read with Section 2(1)(g) ofthe A&C Act, claiming that Shri S.N. Kanungo voluntarily executed anassignment deed on 27.10.1999, which is a document in writing, whilesimultaneously issuing a cheque as security.F11. Order XXI of the CPC is titled as “Execution of Decrees and

11. Order XXI of the CPC is titled as “Execution of Decrees andOrders”. Rule 16 of Order XXI deals with “application for execution bytransferee of decree” and reads as under:

“Order XXI

Execution of Decrees and Orders

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—16. Application for execution by transferee of decree.Where a decree or, if a decree has been passed jointly in favourof two or more persons, the interest of any decree-holder in thedecree is transferred by assignment in writing or by operation ofHlaw, the transferee may apply for execution of the decree to the VAISHNO DEVI CONSTRUCTION REP. THR. SOLE PROPRIETOR(D) THR. LRS v. UNION OF INDIA [SANJAY KISHAN KAUL, J.]

Court which passed it; and the decree may be executed in thesame manner and subject to the same conditions as if theapplication were made by such decree-holder:

Provided that, where the decree, or such interest as aforesaid,has been transferred by assignment, notice of such applicationshall be given to the transferor and the judgment-debtor, and thedecree shall not be executed until the Court has heard theirobjections (if any) to its execution:

Provided also that, where a decree for the payment of moneyagainst two or more persons has been transferred to one of them,it shall not be executed against the others.

[Explanation. —Nothing in this rule shall affect the provisions ofsection 146, and a transferee of rights in the property, which is thesubject matter of the suit, may apply for execution of the decreewithout a separate assignment of the decree as required by thisrule.]”

12. It may be observed that the Explanation was inserted by Act104 of 1976 (hereinafter referred to as the ‘Code of Civil Procedure(Amendment) Act, 1976’) w.e.f. 01.02.1977 and has a material bearingin the conspectus of the respective arguments. The recourse to Section47 of the CPC in the application arises from this provision specifying thequestions to be determined by the court executing a decree, and it readsas under:

“47. Questions to be determined by the Court executingdecree.—(1) All questions arising between the parties to the suitin which the decree was passed, or their representatives, andrelating to the execution, discharge or satisfaction of the decree,shall be determined by the Court executing the decree and not bya separate suit.

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(3) Where a question arises as to whether any person is or is notthe representative of a party, such question shall, for the purposesof this section, be determined by the Court.

[Explanation 1.—For the purposes of this section, a plaintiff whosesuit has been dismissed and a defendant against whom a suit hasbeen dismissed are parties to the suit.

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AExplanation II—(a) For the purposes of this section, a purchaserof property at a sale in execution of a decree shall be deemed tobe a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of suchproperty to such purchaser or his representative shall be deemedBto be questions relating to the execution, discharge or satisfactionof the decree within the meaning of this section.]”

13. Section 146 of the CPC deals with the “Proceedings by oragainst representatives” and reads as under:

“146. Proceedings by or against representatives.—Save asCotherwise provided by this Code or by any law for the time beingin force, where any proceeding may be taken or application madeby or against any person then the proceeding may be taken or theapplication may be made by or against any person claiming underhim.”

D14. It was, thus, the case of the appellants that their claim raiseda question to be determined by an executing court within the parametersof Section 47 of the CPC in the context of the appellants claiming rightsunder the assignment of Shri S.N. Kanungo (as per Section 146 of theCPC). Section 2(1)(g) of the A&C Act being part of the definition clausereads as under:E

“2. Definitions. —

(1) In this Part, unless the context otherwise requires,—

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(g) “legal representative” means a person who in law representsthe estate of a deceased person, and includes any person whointermeddles with the estate of the deceased, and, where a partyacts in a representative character, the person on whom the estatedevolves on the death of the party so acting;”

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G15. The provisions of the CPC were thus sought to be madeapplicable to these proceedings for execution of an award which hadculminated in a decree in the capacity of an assignee/representative toclaim from Shri S.N. Kanungo on account of the assignment.

16. In the conspectus of the aforesaid dispute, the common caseHis that the judgment of this Court in Jugalkishore Saraf v. M/s. Raw

Cotton Co. Ltd.[1] is of utmost significance. This is so as the failure of theappellants to succeed before the courts below is predicated on thereasoning that this judgment of the Supreme Court covers the case againstthe appellants. A specific reliance was placed on para 26, as per whichOrder XXI Rule 16 contemplates the actual transfer of the decree by anassignment in writing executed “after the decree is passed”. Thus,while a transfer of or an agreement to transfer a decree that may bepassed in the future may, in equity, entitle the intending transferee toclaim the beneficial interest in the decree after it is passed, such equitabletransfer does not relate back to the prior agreement and does not renderthe transferee a transferee of the decree by an assignment in writingwithin the meaning of Order XXI Rule 16 of the CPC.

17. Learned counsel for the appellants sought to invite our attentionto certain other paragraphs in support of the proposition they seek toadvance, more specifically paras 52, 54, 56 and 59. Earlier judicialprecedent of the Bombay High Court and the Calcutta High Court werereferred to for the proposition that Order XXI Rule 16 was not intendedto apply to cases where serious contest arose with respect to the rightsof persons to an equitable interest in a decree. Two views were mentioned,i.e., the strict view about the requirement of existence of a decree; andthe other view based on equity, when an agreement has been enteredinto in writing albeit prior to the decree which may be optional for thecourts depending on the extent of investigation required to arrive at aconclusion.[2] This is followed up by a discussion in para 53 of the judgmenton the scope of Order XXI Rule 16 of the CPC. The SC opined that untila person applying for execution establishes his title as the transferee ofa decree, he cannot claim the benefit of that provision. Such assignmentcan be in writing or by operation of law. In this behalf Section 5 of theTransfer of Property Act, 1882 defines “transfer of property” as an actby which the transferor conveys property in present or in future to thetransferee or transferees. In that context it was observed that a decreewhich is the subject matter of transfer must be in existence as on thedate of the transfer. The words “in present or in future” qualify the word“conveys” and not the word “property” in Section 5 and would, thus, notoperate to a decree which would come into existence in the future. Sucha decree could not be said to be transferred by an assignment in writingand the matter resting merely in a contract to be performed in the future 1 AIR 1955 SC 376.

2 Prabhashinee Debi v. Rasiklal Banerji 1931 ILR 59 Cal 297.

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Awhich may be specifically enforced as soon as the decree was passedwould be no transfer automatically in favour of the transferee of thedecree when passed. The discussion ends with the opinion that anywarrant for importing this equitable principle while construing the statutoryprovision enacted under Order XXI Rule 16 of the CPC would not beappropriate as it does not prescribe any mode in which such an assignmentBin writing has to be executed in order to effectuate a transfer of a decree.

18. The Supreme Court noticed that the High Court of Calcutta inPurna Chandra Bhowmick v. Barna Kumari Devi[3 ]had applied theequitable principle and held that the plaintiff in whose favour the defendanthad executed a mortgage bond assigning by way of security the decreeCthat would be passed in a suit instituted against a third party for recoveryof money due on unpaid bills for work done, was entitled to a declarationthat he was an assignee of the decree passed in favour of the defendantand as such, was entitled to realise the decretal debt either amicably orby execution. The high court further held that there could be no objectionto decide a question involving investigation of complicated facts or difficultDquestions of law in execution proceedings, as Section 47 of the CPCauthorised the Court executing the decree to decide all questions arisingtherein and relating to execution of the decree, as it facilitates adjudicationand obviates the necessity of filing a separate suit for determination ofthe same.E19. A distinction was made in respect of transfer of an actionableclaim within the meaning of Section 3 of the Transfer of Property Act,1882. In cases of transfer of book debt or property coming within thedefinition of actionable claim, the same necessarily involved transfer ofa transferor’s right in a decree which may be passed in his favour in aFpending litigation and the moment a decree is passed in his favour by thecourt of law, that decree is automatically transferred in favour of thetransferee by virtue of the assignment in writing already executed bythe transferor. The book debt does not lose its character of a debt by itsbeing merged in the decree and without anything more, the transferee isentitled to the benefit of the decree passed by the court in favour of theGtransferor. The transferee of an actionable claim would, thus, step intothe shoes of the transferor and claim to be transferee of the decree byvirtue of the assignment in writing executed by the transferor in hisfavour. The transferee could, therefore, claim to execute the decreeunder Order XXI Rule 16 of the CPC.

20. In the conspectus of the discussion what was submitted bylearned counsel for the appellant was that the amendments made to theCPC vide the Code of Civil Procedure (Amendment) Act, 1976 are ofsignificance as the judgment is pre that amendment. Of course, this wasan alternative plea to the plea based on a claim of an assignment deedbeing an actionable claim.

Respondents’ Submissions:

21. The respondents, on the other hand, disputed the right of theappellants and claimed that the Assignment Deed itself is a disputeddocument which had not seen the light of the day for 17 years till 2016,and did not find a mention in the appellants’ legal notices. The appellantscould have taken recourse to the Assignment Deed when an award wasdelivered in favour of late Shri Surendra Nath Kanungo on 22.03.1999.The cheque given as a security could have been encashed when theawarded money was paid to Shri S. N. Kanungo in 2001. The appellantstook no steps in pursuance of that award but have raised the issue onlyat the stage when the second award had been made in 2006. Notably,the second award was confirmed by the Supreme Court as well. Theappellants were not the legal representatives of Shri S.N. Kanungo, butat best that was an independent claim that could be adjudicated inappropriate civil proceedings. The decree not being in existence, therespondent claimed they were fully covered by the judgment inJugalkishore Saraf[4]and that the amendments to Order XXI Rule 16would not change the position of law as laid down therein.

22. It was pleaded that the appellants were amongst such personswho were engaged by Shri S.N. Kanungo and had been paid their dues.There was no amount outstanding and nothing was owed to them. TheAssignment Deed and the cheque dated 27.10.1999 were fraudulentdocuments and the letter head and the signed cheque of Shri S.N.Kanungo had been misused.

Conclusion:

23. On analysis of the submissions there is little doubt that theimpugned judgments would have been completely in accordance withlaw if the amendments were not made in 1976 and would have beenfully covered by the judgment in Jugalkishore Saraf[5]. Thus, the onlyaspect which we have to consider is whether that amendment made anydifference to the legal position as enunciated in the said judgment.

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A24. It is an admitted position that the explanation was added toOrder XXI Rule 16 which did not exist earlier, pursuant to therecommendations made by the Law Commission of India in its 54[th] Reporton the Code of Civil Procedure, 1908. The Explanation was so addeddue to conflicting High Courts’ decisions on the question, i.e., whether aperson who does not have a written assignment of the decree, but whoBhas succeeded to a decree holders’ right, is entitled to such decree underSection 146 of the CPC.

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25. In Penniah Pillai v. T. Natarajan Asari[6] the Madras HighCourt decided this question in the affirmative. The high court gave libertyto the transferees to avail of Section 146 if they did not fall within theCprovisions of Order XXI Rule 16 of the CPC and, thus, would covertransferees of a property after the decree was passed. In this behalf thelearned Judge disagreed with an earlier judgment of the Madras HighCourt in K.N. Sampath Mudaliar v. Sakunthala Ammal[7] opining thatSection 146 of the CPC could not have the effect of overriding OrderDXXI Rule 16 of the CPC. The Law Commission agreed with the viewtaken in the former judgment (which was delivered at a later point oftime) and further noted that this view was supported by the High Courtsof Andhra Pradesh[8], Patna[9] and Kerala[10] as well. Thus, the LawCommission recommended amending Order XXI Rule 16 to clarify thatit does not affect the provisions of Section 146 and that a transferee ofErights in the subject matter of the suit can obtain execution of a decreewithout separate assignment of the decree. The objective appears to beto not have multifarious proceedings to determine the issue of assignment,but to determine the issue of assignment in the execution proceedingsitself.F

26. In the conspectus of the aforesaid we are of the view that theobjective of amending Order XXI Rule 16 of the CPC by adding theExplanation was to deal with the scenario as exists in the present case,to avoid separate suit proceedings being filed therefrom and to that extentremoving the distinction between an assignment pre the decree and anGassignment post the decree. Thus, what has been discussed even in the H

6 AIR 1968 Mad 190.

7 1964 2 MLJ 563.

8 Satyanarayana v. Arun Maik AIR 1955 AP 81.

9 Ramnath v. Anardei Devi AIR 1964 Pat 311.

10 Mani Devasia v. Varkey Scaria (1960) Ker. LT 1077.

judgment in Jugalkishore Saraf[11] as a view based on the equitableprinciple was sought to be incorporated in Order XXI Rule 16 of theCPC by adding the Explanation, something which had not been doneearlier. Once the legislative intent is clear, and the law is amended, thenthe earlier position of law cannot be said to prevail post the amendmentand it is not in doubt that the present case is one post the amendment.

27. We may further add that while considering the divergent viewsof the High Courts, the Law Commission took note of the fact that twodifferent interpretations of Jugalkishore Saraf[12 ]had been adopted.Thus, the Law Commission really sought to clarify the legal position sothat the conflicting interpretation of the Supreme Court judgment wouldnot survive. The Explanation clearly stipulates that nothing in Order XXIRule 16 of the CPC would affect the provisions of Section 146 and thetransferee of the right in property which is subject matter of a suit mayapply for execution of the decree without separate assignment of thedecree as required by law. No doubt the appellants are not parties in thesuit proceedings but they claim as assignees of the decree holder.

28. We make it clear that we are not going into the validity of thedocument, i.e., the Assignment Deed or the cheque as that would be amatter to be decided by the executing court. The question was as towhether at the threshold, the appellants’ objection could be rejected onthe ground that they were assignees who had acquired the rights prior tothe passing of the decree. The rest of the job would be of the executingcourt, despite the considerable prolongation which has taken place. Wemay only add that our endeavour to see that an amicable solution isfound by the parties was not successful, thus we have little option but toset aside the impugned judgments and remit the matter back to theexecuting court for determination in terms of the judgment of this Court.Considering the lapse of time that has already taken place, the executingcourt will endeavour to give its consideration as early as possible.

29. The appeals are accordingly allowed leaving the parties tobear their own costs.

Devika Gujral

Appeals allowed.

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