Karnataka High Court
Parvathibai vs Dattatreya Janardhan Dhopeshwarkar ... on 9 December, 1991
Equivalent citations: ILR1992KAR929, 1991(3)KARLJ708
ORDER Kedambady Jagannatha Shetty, J.
1. These Civil Revision Petitions are directed against the orders passed on I.A. Nos. VII and VIII by the Court of the Second Additional Civil Judge, Belgaum, dated 3-4-1986 in Execution Case No. 26 of 1964 rejecting the I.As. holding that the proceeding has come to an end after the disposal of the Special Leave Petition by the Supreme Court on its file.
2. Since these Revision Petitions arise out of a common order they are clubbed and disposed of by this Court by a common Order.
3. Brief facts of the case are:
Smt. Parvati Bai wife of Balram Haibatti the petitioner, has filed two applications I.As. VII and VIII, the former under Order 21 Rule 16 and the latter under Section 151 of the Code of Civil Procedure (hereinafter referred to as the 'CPC'). Her first application is for seeking permission to continue the execution and the second one is for taking the certified copy of the plan along with the separate list as part of the final decree, and possession of the property shown in the said plan to be handed over to her.
4. The case in brief is that the opponent Nos. 1 to 4 had filed O.S.No. 47 of 1949 in the Court of the I Additional Civil Judge, Belgaum against opponents 5 to 10 for partition and separate possession of their share in the suit schedule properties. In the said suit, a preliminary decree was passed declaring that the opponents 1 to 4 are entitled to 5/9th share in the suit properties, They filed execution case in question for passing final decree. The 1 Additional Civil Judge, Belgaum had passed a final decree on 15-11-1974 allotting the portion marked as A.B.C.D.E.F.G.H.I and A to the decree holders - opponents 1 to 4 and directing the decree holders to pay Rs. 5,892/- to the Judgment-Debtors - opponents 5 to 10 to equalise the share. The order passed in the execution case leading to the final decree was challenged by opponent No. 5 in Execution First Appeal No. 7 of 1975 before this Court. The said appeal was dismissed by this Court by an order, dated 1 -7-1981. Being aggrieved by the said order, the Judgment Debtor-opponent 5 preferred a Special Leave Petition before the Supreme Court. That also came to be dismissed on 2-4-1032. The decree-holders - opponents 1 to 4, in the execution case filed by them, have prayed for putting them in separate possession of the property as shown in the hand sketch annexed to the final decree. They have also deposited a sum of Rs 5,892/- in that Court, on 25-9-1981. In the mean time, they transferred the decree in favour of the petitioner for a consideration of Rs 50,000/- by executing a sale deed, dated 24-9-1977 which was registered on 27-9-1977. As such, she has stepped into the shoes of the original decree holder and claimed that she is entitled to execute the said decree. In the application filed by her, she sought for substitution of her name in the place of the name of the original decree-holder, in the execution petition. The opponent No. 5 resisted the application by filing objections to the said I.A.No.VII. The other opponents No. 6 to 10 have not filed objections and they have been placed ex-parte.
5. In the objection statement, opponent No. 5 (Judgment-Debtor) has admitted, the passing of the preliminary decree in O.S.No. 47 of 1949 declaring that opponents 1 to 4 (decree-holders) are entitled to 5/9th share, He has denied the final decree drawn in the execution but has admitted that it is a fact that he had filed the Execution First Appeal No. 7 of 1975 before this Court against the order passed by the learned Civil Judge, Belgaum and the same was dismissed.
Thereafter, preferred a Special Leave Petition to the Supreme Court which also came to be dismissed. Unless and until a final decree is drawn, the question of putting the decree holders - opponents 1 to 4 in actual possession does not arise. Further, they denied that decree-holders - opponents 1 to 4 have transferred the decree in favour of the applicant for a consideration of Rs. 50,000/- under a registered sale deed and the applicant has stepped into the shoes of the original decree-holders. When the proceedings was pending before this Court and the Supreme Court, the applicant did not make any attempt to get herself on record, in view of the so called transaction. If really, it was a valid and genuine transaction, the petitioner applicant could not have hesitated to get herself on record as an assignee. As such, the petitioner applicant will have to get her title duly established in a competent civil Court. Unless it is done, she has no right to file the present application. Further, on 24-9-1983, the Judgment Debtor - opponent No. 5 has filed additional objections contending therein, that assuming but without admitting, that if the Court can decide the question about the validity of the so called assignment in favour of the applicant, then that the so called assignment was without there being any notice to him. That transaction of sale by the Decree-Holder in favour of the applicant was not admitted as there was no adequate consideration. Further, he has also contended, that document has been created with an intention to evict him from the premises by hook or cook. The Court Commissioner's map which is now missing from the Court's file has disclosed that 5/9th share falls in the middle of Mangal Vastu Bhandar Shop. Therefore, the map which is now produced by the petitioner-applicant is nothing but created one so as to suit her own purpose.
6. The petitioner - applicant has filed an application I.A.No. VIII praying that the certified copy of the plan produced along with the separate list may be treated as part of the final decree and possession of the property shown in the said plan be handed over to her.
The opponent No. 5 has filed his objections to the said application and inter alia contended that the application is not maintainable, because the rights of the so called assignee of the Decree Holder has not yet been adjudicated by the Civil Judge, Belgaum. It is further contended that assuming but not admitting, that if the Court thinks that the present application is maintainable, the document proposed to be produced is suspicious and got up one. He does not admit the correctness of the proposed document,
7. The lower Court on the basis of the respective rival contentions of the parties has formulated the following points for determination:
1) Whether I.A.No.VII has to be allowed?
2) Whether I.A.No. VIII has to be allowed?
8. In support of her case, the petitioner-applicant has got examined five witnesses and marked Exs.P-1 to P-4. The opponent No. 5 got himself examined and got marked Exs. D-1 to D-14.
9. The learned Civil Judge on consideration of both oral and documentary evidence has held both points in the negative. On point No. 1 the lower Court has held that the present final decree proceeding has come to an end after the Special Leave Petition filed by the opponent No. 5 before the Supreme Court was rejected and that the applicant has not filed a separate execution petition as required under Order 21 Rule 16 CPC, and that Ex.P.2 has not been proved. As such, I.A. No. VII is liable to be rejected.
10. In respect of I.A.No.VIII is concerned, the lower Court has held that I.A.No. VIII has been filed by the applicant of I.A.No.VII since the said application will have to be rejected, the question of maintainability of I.A.No.VIII will not arise. However, the lower Court assuming it to be maintainable irrespective of the fact that I.A.No.VII will have to be rejected dealt with the question of maintainability and has held that the case of opponent No. 5 that the applicant and P.W.1 got created the map as per Ex P-3 which appears to be probable and accordingly, I.A.No. VIII also came to be rejected by the Court,
11. Hence, these two Revision Petitions are filed by the applicant (Petitioner) challenging the order of the lower Court passed on I.A. Nos. VII and VIII.
12. Mr. S.G. Sundaraswamy, learned Senior Counsel, appearing for the petitioner-applicant has submitted that the Court below exercised jurisdiction not vested in it; and exercised jurisdiction beyond the pleadings in the case.
The finding of the Court below that execution proceeding has come to an end after the disposal of the Special Leave Petition is absolutely erroneous in law for until and unless the executing Court passes order the delivery of possession it would not come to an end. When the execution is still pending the application under Order 21 Rule 16 to continue the execution is maintainable. Under Order 21 Rule 16, the assignee can come on record in place of Decree-Holder as laid down in DHANI RAM v. SRI RAM, . He has further contended that the reasoning of the lower Court that the notices have not been served on opponents-respondents 2 to 4 is absolutely enroneous on 5-2-1983 the Opponents 1 to 4 have appeared through their counsel and have file their statement by opponent No. 1 for himself and on behalf of opponent Nos. 2 to 4 as power of attorney holder stating that they have no objection to delete their names and to bring the name of the applicant on record.
The Court below has failed to see that the opponent No. 5 had the notices of sale of 5/9th share in the suit property by the Decree-Holders - opponents 1 to 4 in favour of the applicant by a registered sale deed, dated 24-9-1971. The Judgment Debtor No. 5 -opponent No. 5 is aware of the fact of sale when the counter affidavit filed by the Decree Holder No, 1 - opponent No. 1 before the Supreme Court in Special Leave Petition No. 8739 of 1981; it has been stated on oath that 5/9th share is sold to the applicant by registered sale deed dated 24-9-1971. The Court below has failed to see that the Judgment Debtor No. 5 has entered into an agreement of sale with the petitioner - applicant in respect of his 4/9th share allotted to him and suit O.S.No. 182 of 1981 is filed by the petitioner for specific performance against him which is pending.
13. Nextly, the learned .Counsel for the petitioner argued in so far as the order of the lower Court rejecting I.A.No.VIII is concerned that it has failed to see that the map Ex.P-3 drawn in final decree is the certified copy issued by this Court, as such, the lower Court ought to have accepted Ex.P.3. Further, he has submitted that the reasoning given by the lower Court in rejecting I.A.No.VIII is illegal and against law.
In support of his submission he has relied on the Decisions reported in (1) KASIM KHAN v. VEERABHADRAPPA, 1963 Mys. LJ. Supp 421; GOPAL NARAYAN v. RAGHAVENDRA WAMANRAO, 1963(2) Mys. L.J. 400; K. SOMAYAJALU v. ANNAPPA, AIR 1957 AP 66 and Dhani Ram v. Sri Ram.
14. Mr. Tarakaram, learned Counsel appearing for the respondent - opponent No. 5, has strenuously argued that the lower Court has not committed any material irregularity or acted illegally in passing the impugned order rejecting I.A.Nos. VII and VIII of the petitioner. He has contended that since the execution proceedings came to an end when the Supreme Court dismissed the Special Leave Petition filed by the respondent No. 5 - opponent No. 5 challenging the order passed by this Court, the original Decree-Holder and the applicant cannot continue the said proceedings, as it has deemed to have come to an end, separate execution must be filed. He has further argued that the lower Court has rightly come to the conclusion that the sale deed, Ex.P-2 by which the property sold in favour of the petitioner is not proved. In respect of the order of the lower Court rejecting I.A.No.VIII is concerned, he has submitted that the lower Court, has rightly exercised the jurisdiction vested in it by not entertaining the application by holding that map Ex.P-3 is not genuine and valid one. In support of his submission, he relied on the Decisions reported in KISHORE CHANDRA v. GANESH PRASAD, ; JUGRAJ SINGH v. JASWANT SINGH, ; JAMBU PRASAD v. NAWAB AFTAR ALI KHAN, AIR 1914 PC 16; and NEMICHAND v. GANESHMAL, AIR 1971 Rajasthan 181.
15. Let me examine the rival contentions of the parties. From the respective contentions of the parties, the following points arise for consideration:-
1. Whether the lower court is right in holding, that an application of the petitioner I.A.No.VII under Order 21 Rule 16 CPC for continuation of the execution proceedings is not maintainable?
2. Whether the lower Court has committed illegality in holding that the execution proceedings has come to an end after the disposal of the Special Leave Petition?
3. Whether the lower Court is right in rejecting I.A. No. VIII holding Ex.P-3 is a got up document in view of the opponent No. S's contention appears to be probable?
16. The undisputed facts of the case are that opponent Nos. 1 to 4 had filed suit O.S.No.47 of 1949 against opponent Nos. 5 to 10 for partition of the suit properties. There was a preliminary decree passed declaring that opponent Nos. 1 to 4 are entitled to 5/9th share in the suit properties. The Decree-Holders - opponents Nos. 1 to 4 filed execution case for passing a final decree. The final decree was passed by the Additional Civil Judge, Belgaum allotting the portion marked A, B, C, D, E, F, G, H, I and A, to the Decree Holders -opponent Nos. 1 to 4 and direct them to pay Rs.5,892/- to Judgment Debtors - opponent Nos. 5 to 10 to equalise the share.
17. The opponent No. 5 preferred an Execution First Appeal against the said final decree passed by the Court. The said appeal was dismissed by this Court against which the opponent No. 5 to 10 preferred a Special Leave Petition before the Supreme Court in Special Leave Petition No. 8729 of 1981 and the same was dismissed on 2-4-1982. The said execution petition was filed by the Decree-Holder - opponent Nos.1 to 4 praying for putting them in separate possession of the property mentioned by letters A, B, C, D, E, F, G, H, I and A in the sketch annexed to the final decree. They have also deposited the amount of Rs. 5,892/- in the Court as per the final decree on 25-9-1981. After the order passed in the execution case and when the matter was pending in Execution First Appeal of the Judgment Debtor - opponent No. 5 in this Court, the Decree-Holder - opponent Nos. 1 to 4 had sold their 5/9th share to the petitioner - applicant under a registered sale deed, dated 24-9-1977 registered on 27-9-1977. The petitioner filed an application I.A.No. VII on 22-10-1982 praying therein that she had purchased the suit schedule property of Decree-Holders Opponent Nos. 1 to 4 and she has stopped into the shoes of the Decree Holders, her name to be shown as Decree-Holder in place of original Decree Holders in the execution case and she may be permitted to continue the execution. Decree-Holder No. 1 had represented Decree-Holders 2 to 4 as power of attorney holder and he for himself and on behalf of the decree-holders 2 to 4 has filed a Memo admitting the transfer of the decree in favour of the petitioner. In the said Memo, it has been stated that they have no objection to delete their names and enter the name of the petitioner-applicant in their place and continue the case.
18. The Judgment Debtor-opponent No. 5 had resisted the application, but opponent Nos. 6 to 10 did not contest the application by remaining ex-parte. The petitioner-applicant had also filed an application I.A.No.VIII to take Ex.P-3, the certified copy of the plan, as part of the final decree, as the original of the plan was not traced though it was produced and marked in the final decree proceedings. The said application was also opposed by the respondent No. 5 by filing objections, wherein he has contended that unless the right of the assignee of the Decree-Holder is adjudicated, the application it not maintainable. Even if it is maintainable, the said document is suspicious and got up one, as such, it cannot be taken as part of the final decree.
19. POINT NOS.1 and 2:-
Whether on disposal of Special Leave Petition by the Supreme Court, the proceedings in execution case termed as such, though it was final decree proceedings has come to an end and no application under Order 21 Rule 16 CPC could be filed to continue the alleged execution proceedings. To answer this vexed question, it is relevant to refer to the material placed an record and the evidence adduced by the respective parties. It is contended by the judgment-debtor-respondent No. 5 that the execution case by which the final decree passed and the execution first appeal filed by him before this Court and on its dismissal leave to appeal to the Supreme Court also came to be dismissed. Though it is numbered as Execution Petition, it is neverthless a final decree proceedings. When that proceedings is terminated by rejection of Special Leave Petition by the Supreme Court, the proceedings of final decree has come to an end, there was no execution strictly in legal sense.
20. The learned Counsel appearing on behalf of the respondents, in support of his contention, has relied on the Decision reported in NARASU BIN NINGAPPA v. NARAYANA KRISHNAJI, 1959 Mys.L.J. 103 10. In the said Decision this Court has held as follows:-
"A decree passed under Rule 18(1) of Order XX, directing partition by the Collector cannot be said to be a preliminary decree. So far as the Civil courts are concerned it is final for all purposes, though the partition of property may remain to be effected by the Collector. Sub-rule (1) of Rule 18 does not contemplate any application to be filed by the parties for sending the papers to the Collector. It says that the Court "shall direct such partition or separation to be made by the Collector or any gazetted subordinate, of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54." This direction must be deemed to be a part of the decree. Any application filed before the Court which passed the decree to send the papers to the Collector could only be considered as a reminder to the Court to follow up its direction given under Sub-rule (1) of Rule 18. No period of limitation is provided for such a reminder as the same is not one contemplated by law. In sending the papers to the Collector, the Court is not performing any judicial function; nor is it required to pass any judicial order. Its function could at best be described as ministerial. It will be inappropriate to call such an application as an execution application: The Court which passed the decree must be deemed to have become functus officio after passing the decree."
The ratio decided in this case, I adhere to, but it is inapplicable to the facts of this case. That was a case in which after passing of the preliminary decree in the partition suit in respect of joint family property which are agricultural immoveable property an application was filed before the Court below to send the said decree to the Collector of the District for partitioning the property under Sub-rule (1) of Rule 18 of Order 20 CPC. It way numbered as Regular Darkasth No. 204 of 1947 which purports to be an execution petition. The Court relying on the Decision of the Bombay High Court in RAMABAI GOVIND v. ANANT DAJI, AIR 1945 Bombay 338 which reads thus:-
"Whether the decree contemplated in Order 20 Rule 18, Sub-rule (1) in in the nature of a preliminary decree or a final decree on application made by a party to a decree under Order 20 Rule 18(1), asking that the papers should be sent to the Collector for effecting a partition as directed in it is of the nature of a mere proceeding in the suit rather than an application to execute the decree, and there is no period of limitation for making it. The effecting of partition by the Collector, carrying out an order already passed by the Court, is not 'execution of the decree' as contemplated by that expression in column 1 of Article 182 of Schedule 1, Limitation Act. Even if the decree be regarded as final, an application to send the decree to the Collector for effecting a partition, being only a request to the Court to do a ministerial act, is not governed by Article 182. Nor is such an application governed by Article 181, since there is no provision which requires an application to be made to the Court to send a decree, under Order 20, Rule 18(1) to the Collector. An application, even if made in the form of a dharkast application, is not governed by Article 181 or any other Article of the Limitation Act."
has held that such an application under Sub-rule (1) of Rule 18 of Order 20 is not an execution application. It is clear from the aforesaid Decision, that when an order is made for partition of the property assessed to Government Revenue, the Court makes an order decreeing the partition and directing the parties to be put into possession and referring it to the Collector to carry out the partition. When such an order is made in that form, the Court duties are finished, and it is for the Collector to partition the property and put the parties in possession. An application by the party subsequently to the Judge to send the decree and the papers to the Collector is not an application for execution at all. In the instant case, there was a preliminary decree, thereafter in an execution final proceedings, certain steps have been taken to partition of the property by metes and bounds for which a Commissioner was appointed under Order 26 Rule 13 CPC, to effect the partition. He has submitted his report with map annexed to it to effect partition of the property by metes and bounds and the lower Court was to finally pass the order to give effect to it. At that stage an execution appeal was filed by the respondent before this Court which was dismissed and later the leave to appeal to Supreme Court was also dismissed. Thereafter the decree-holders assigned the decree to the applicants - respondents 4 to 5 who have Tiled the application under Order 21 Rule 16 and another application under Section 151 for bringing the certified copy of the map as part of the final decree. An argument was advanced by the learned Counsel appearing for the petitioner that the substantive provision which requires that partition of joint family property or separation of share in such property assessed to the payment of revenue to the Government, shall be made by the Collector under Section 54 of C.P.C. This Section appears in Part II of C.P.C. which bears the heading 'Execution' and it is one of the four Sections under the sub-heading 'Procedure in Execution'. The only provision of the Code other than Order 20 Rule 18 which refers to Section 54 appears to be Order 26 Rule 13 which provides:-
"Where a preliminary decree for partition has been passed, the Court may in any case not provided for by section 54, issue a Commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree."
Thus, by reason of the provision of Section 54 in the Code and by reason of Clause (2) of Order 18 provides expressly that partition of other immoveable property, there is to be a preliminary decree as such the proceedings subsequent to the decree made in from Order 18 Rule (2) are execution proceedings. The contention of the learned Counsel for the petitioner is well founded and is acceptable. It seems to me that the decree can be partly final and partly preliminary under the definition of decree in Section 2 of the C.P.C. In the present case, the partition of immoveable property not paying revenue to Government which falls in other part of Order 20 Rule 18(2) of CPC, the Court after ascertaining the shares of the parties has appointed a Commissioner to effect division and to allot shares to the parties, and the decree of the Court followed the report in the same manner under Order 26 Rule 14 of CPC, a final decree follows the preliminary decree under Order 20 Rule 18(2) CPC. Thus, the entire proceedings of final decree following the preliminary decree was commenced as execution final decree proceedings which consists of the combination of proceedings in a suit and proceedings in execution. That is why the proceedings called as Execution Final Decree Proceedings. It seems to me therefore, that the circumstances that technically the Court decree is partly final decree is reason sufficient to insist the proceedings in execution. Therefore, I answer the point that the lower Court has committed illegality in holding that the execution proceedings which in reality final decree proceedings has come to an end after the disposal of the Special Leave Petition by the Supreme Court.
21. The second point, however, remains to be answered is whether the lower Court is right in holding that an application of the petitioner I.A.No.VII under Order 21 Rule 16 C.P.C. for continuation of the execution proceedings is not maintainable.
22. It is urged that once the proceedings is held to be a proceedings in execution, or in other words that once the decree is held to be a final decree or partly final decree, all further proceedings to implement the decree must be execution proceedings, the application under Order 21 Rule 16 CPC is maintainable as it is made in execution proceedings. In support of this argument, the learned Counsel for the petitioner has relied on the Decision of the Supreme Court reported in KHEMCHAND SHANKAR v. VISHNU HARI, . In the said Decision, the Supreme Court has observed thus:-
"Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immoveable property which is the subject matter of the suit will be bound in so far as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Civil P.C. clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made."
Further it is observed:-
"A transferee from a party of a property which is the subject matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition, A transferee from him therefore, can also do so. Such a construction of Section 54 of the Civil P.C. advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the Civil Court even though there may be no dispute about the succession, devolution or transfer of interest. In any such case where there is no dispute if the Collector makes an equitable partition taking into considerations the interest of all concerned including those on whom any interest in the subject matter has devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the Legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out 'in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares.'"
The application in question was made by the petitioner in the execution final decree proceedings under Order 21 Rule 16 read with Section 151 of C.P.C. and prayed for impleading them as parties in place of Decree-Holders and to continue the execution proceedings. The said application was virtually under Order 22 Rule 10 to implead them as party in proceedings in the suit which was in the final stage of giving effect to the final decree in the form of execution. The dictum laid down in the Decision of the Supreme Court applies in all fours to this case. I hold that the application of the petitioner in the execution proceedings is maintainable. As observed by the petitioner as transferee from the Decree Holder of a property which is the subject matter of partition can exercise all the rights of the transferee, such transferee can maintain the application to implead as a party and proceed with the execution.
23. One other point raised by Mr. Tarakaram, learned Counsel for the respondents, was that the transferee or the assignee of decree cannot continue the execution, he shall have to file afresh execution. This argument does not deserve serious consideration for the transferee pendente lite of the rights of the Decree Holders can seek the relief in execution proceedings by stepping into the shoes of the Decree Holders. Whatever interest the Decree Holder had in the property passes on to the transferee/assignee. In the Decision reported in Mt. SANT KAUR v. TEJA SINGH, AIR 1946 Lahore 142 the Full Bench supports the above proposition which states:-
"The word 'representative' as used in Section 47 has a much wider meaning than the words 'legal representative' and includes not only a legal representative but any representative in interest, i.e., any transferee of the interest of a party, whether by assignment, succession or otherwise, who so far as such interest is concerned is bound by the decree. A transferee from a defendant pendente lite being the representative in interest of such defendant and being bound by the decree eventually passed in the suit, by reason of the operation of the rule of I is pendens, is a representative of the defendant within Section 47 and the decree-holder can execute the decree against him in the same manner and to the same extent as he could execute it against the original defendant."
Mr. Tarakaram has, however, relied on the Decision of this Court reported in DEVANIDHI THIMMAKKA v. DODDA THIMMAPPA, . In the said Decision it has been held that the assignment deed in question speaks as though the entire decree for maintenance is assigned in their favour. The right for future maintenance cannot be assigned at all. Incidentally it is observed in the said Decision that "the remedy of an assignee is not to get himself impleaded himself in the pending execution proceedings, but he must make a separate application for execution. The learned Counsel appearing for the petitioner has submitted that it is an obiter dicta. That apart, he has pointed out that there are two earlier Decisions of this Court reported in Kasim Khan v. Veerabhadrappa and Gopal Narayan v. Raghavendra Wamanrao. In the Decision of Kasim Khan, cited above, His lordship Mir Iqbal Hussain has held thus:-
"The last contention that requires a passing reference is whether the claimant Veerabhadrappa who is a transferee pendente lite of the rights of the fifth respondent judgment debtor Imambi can seek the relief of restoration in execution proceedings. The answer to this depends upon the connotation to be placed on the term 'representative' in Section 47 C.P.C. This question does not pose any difficulty because the term 'representative' found in that section has a wide ambit it is wider than. Term legal representable the representative here denotes 'representative interest', in other words, the claimant in the initial case steps into the shoes of the judgment-debtor Imambi. Whatever interest the latter had in the property passes on to the former."
In Gopal Narayan's case, cited supra, His Lordship Somnath Iyer, has observed that:
"All that Rule 16 (Order 21 Rule 16) says is that the assignee decree-holder should apply for execution of the decree of the Court which passed it. It does not in terms say that he should present his own execution application and that if an execution application presented by the assignor decree-holder is pending before the court which passed it, it is not open to the assignee decree-holder to make an application to that Court in the execution proceeding already commenced by the assignor decree-holder for the substitution of his own name for the assignor and for the recognition of the assignment in his favour and for permission to continue the execution proceedings. It does not appear to me at all reasonable to suggest that I should import into Rule 16 words which are not contained in it or that I should say that notwithstanding the pendency of the execution proceedings commenced by the assignor decree-holder those execution proceedings should be stopped by the assignee decree-holder and that he should commence another execution proceeding at his own instance by the presentation of a new and independent execution application. Any such view might lead to hardship and injustice particularly in a case where the decree has become more than twelve years old and therefore inexecutable under the provisions of Section 48 of the CPC. by the time the assignor makes the assignment. To insist upon the assignee to make a fresh execution application after such assignment would be to" insist on the assignee commencing an impossible execution proceeding."
24. The learned Counsel for the petitioner has relied upon a Division Bench Decision of this Court in DEVASINGAMANI MUDALIAR v. VENKATASAMI, 1958 Mys. LJ. 411. It has observed that:-
"An execution application presented by a decree-holder does not come to an end with his death. An execution application does not abate when the decree-holder dies. The legal representative is entitled to apply for permission to bring himself on record in the place of the deceased-decree holder in an execution case and to continue the proceedings, not only under Order 21 Rule 16 C.P.C., but also under Section 146 C.P.C."
As laid down by the Full Bench Decision of Lahore High Court the word 'representative used in Section 47 includes both legal representative and representative in interest viz., any transferee of the interest of the party whether by assignment, succession or otherwise. What emerges from the foregoing Decisions, is that the transferee/assignee-decree-holder can continue the execution proceedings by making an application under Order 21 Rule 16 of C.P.C. for the Rule 16 of Order 21 CPC does not require the assignee to make an independent execution application and seek permission for recognition of his assignment. The assignee decree-holder can substitute himself as a party in a pending execution application commenced by the assignor decree-holder.
25. The next point which requires to be considered is that whether Ex.P-2 the registered sale deed by which the decree-holders sold their 5/9th share in the property to Paravathi Bai, the petitioner, has been proved. The contention of the petitioner's Counsel is that the lower Court has gone on tangent and without properly appreciating the evidence, but by stressing more on the minor discrepancies in the evidence of attesting witness, has held that Ex.P-2 is not true. It is his further submission that as per the registered sale deed Ex.P-2 the decree holder Nos.1 to 4 sold the property on 24-9-1977 to the petitioner and the same is proved by witnesses P.Ws.3, 4 and 5. The fact of the sale was known to the Judgment-debtor No. 5 (respondent No. 4) by the counter filed by the decree-holder in the Supreme Court in Special Leave Petition. It has been stated that 5/9th share was sold to the petitioner by registered sale deed for a consideration of Rs.50,000/-. That apart the decreeholders themselves have admitted in evidence that they sold 5/9th share in the property to the petitioner and have stated that the name of the petitioner may be substituted in their place in the execution proceedings as assignee-decree-holder.
26. It is further argued by the Counsel appearing for the petitioner that when the decree-holders themselves admit that they have sold their share to the petitioner-applicant as per the memo Ex.D-10. The respondent-4 (Judgment-debtor) cannot challenge the same as he has no right nor he claims any right in respect of the property sold by the decree-holder. On the other hand, he himself has agreed to sell his 4/9th share to the petitioner-applicant and the suit O.S.No.182 of 1991 has been filed by the petitioner-applicant for specific performance of the agreement which is still pending. The learned Counsel for the petitioner in support of his submission has relied on the Decision reported in RAMACHANDRA DASHRATH KHADE v. MOHAMAD IQBAL, . In the said Decision, it has been held that when executant admits execution, vendee need not prove the document further. It is pointed out that the decree-holders themselves have admitted the execution of the sale deed Ex.P-2 by which they sold the property viz., 5/9th share to the petitioner-applicant.
27. The learned Counsel appearing for the respondent argued that the petitioner-vendee has failed to prove the sale deed Ex.P-2 and the lower Court has rightly held that the petitioner and other witnesses have colluded and created Ex.P-2 and there are discrepancies, as such the contention of respondent No. 4 Judgment-debtor No. 5 appears to be probable. He has further submitted that the executing Court should go into the question as to the truth and validity of the transfer if it is questioned, it is further stated that though in Ex.P.2 the registered sale deed, it has been stated that decree-holders 2 to 4 have executed the power of attorney in favour of decree-holder No,1 for execution of the sale deed on their behalf on 19-4-1971, 10-5-1971 and 24- 4-1971 and on the strength of it the sale deed was executed by decree-holder No. 1 on their behalf and on his behalf. The petitioner-applicant has not produced the power of attorney or examined the executants of power of attorney, as such, the presentation of the deed of sale by agent not proved to be duly authorised and the registration was not valid. In support of this submission, learned Counsel appearing for the respondents has relied on number of Decisions reported in Jambu Prasad v. Nawab Aftab Ali Khan, RAIBHADUR CHOTTEY LAL v. THE COLLECTOR, MORADABAD, AIR 1922 PC 279; Kishore Chandra v. Ganesh Prasad and Jugraj Singh v. Jaswant Singh. The principles of law laid down in those Cases to which I adhere, have no application by their own terms. The instant case is distinguishable on facts. In this case, as per Ex.P-2 the sale deed, it has been mentioned in it that the decree-holders 2 to 4 have executed the power of attorney in favour of decree-holder No. 1 who executed the sale deed on their behalf and himself and the same was registered by the Sub-Registrar. The executant himself admitted that execution as well at an early point of time under memo, Ex.D-10 it has been stated by the decree-holders that the property was sold to the petitioner. Moreover, it is not a case in which the judgment-debtor No. 5 (opponent No. 4) claimed any right in 5/9th share of the property of decree-holders Nos. 2 to 5 who sold it to the petitioner. As observed in Ramachandra Dashrath Khade's case, cited supra, it is only in two situations the sale deed is required to be proved - (1) when the executant has denied the execution of the sale deed; (2) when a third party claiming title to the property sold disputes the sale. When this is the position, the judgment-debtor No. 5 (oppponent No. 4) who is not claiming title to the property cannot dispute the sale and as such the question of proving the execution in addition to the title does not arise. The lower Court has unnecessarily laboured and wasted its energy in considering the untenable contentions of the respondent No. 4 as the petitioner has not proved the execution of the sale deed, by not producing the power of attorney and by examining the executants of power of attorney in favour of the decree-holder No. 1 who has executed and presented the sale deed Ex.P-2, on behalf of decree-holders 2 to 4 and himself before the Sub Registrar for registration. As noticed that in Ex.P-2, registered sale deed, it has been mentioned that the decree-holders 2 to 4 have executed power of attorney in favour of opponent No. 1 (decree holder No. 1) who has executed and presented the sale deed on their behalf and himself which has been endorsed by the registering officer, then it shall be presumed that the power of attorney was a proper power. Section 34 of the Registration Act imposes upon the Registering Officer the duty of enquiring as to the due execution of the document and by Section 35 he registers the document on being satisfied as to the various particulars mentioned. The document Ex.P-2, the registered sale deed itself goes to show, that there was duly executed power of attorney by decree-holders 2 to 4 in favour of decree-holder No. 1 to execute and present the sale deed for registration and the same is endorsed by the Registering Officer by registering the document.
28. POINT NO.3:- The learned Counsel for the respondent has strenuously argued, that the lower Court has rightly held that Ex.P-3, the map, is a got up document and the application I.A.No.VIII filed by the petitioner to take the map as part of the decree is liable to be rejected.
29. The learned Counsel for the petitioner has submitted that admittedly the Commissioner who was appointed by the Court to effect partition of the property as per the preliminary decree, produced a map along with his report to the lower Court, and the Court has passed the final decree. The judgment debtor No. 5 - opponent No. 4, had challenged the same in the High Court and the records were submitted to the High Court, the original map was found missing. Ex.P-3 is the certified copy of the original map issued by the High Court. It is further pointed out that P.W.1 who has given evidence in the case has stated that Ex.P-3 is the copy of the original map of the Commissioner and it is in accordance with the original. P.W.2 the son of the Commissioner, who had prepared the original map was examined in support of the case to establish, that Ex.P-3 is the true copy of the original map. He has stated in evidence that his father was appointed as Commissioner to effect partition of the suit property, that the original drawing, prepared by his father at the time of partition is Ex.P-4 and it has the signature of his father. P.W.1 has stated in his evidence that he had applied to the High Court for issue of certified copy of the map and got Ex.P-3 and produced it in the case. P.W.2 has categorically stated in his evidence that Ex.P-4 the original drawing prepared by his father and it has the signature of his father. The suggestion made to P.W.1 that he had handed over Ex.P-4 to P.W.2 and he produced the same before the Court was denied. Except this vague suggestion and pointing out minor discrepancies in the evidence as to the existence of red lines, nothing has been made to discredit the evidence. The learned Counsel for the petitioner has further pointed out that Exs.P-3 and P-4 tallied exactly with each other, as such the contention of the respondent's counsel that EX.P-3 was a got up document by P.W.1 cannot be countenanced. It is true, even the lower Court has on perusal of the documents Exs.P-3 and P-4 has observed that they tally exactly with each other except the red linings. The certified copy issued by the High Court might not have shown the red lining, that by itself cannot be discountenanced or hold that the document was got up for the case by P.W.1. From the evidence of P.Ws.1 and 2 and the document Ex.P-3 which tallies with Ex.P-4 the drawing drawn by the Court Commissioner in the final decree proceeding to effect partition of the suit property to establish that the document Ex.P-3 is the true copy of the original and valid document. The lower Court's observation that the document Ex.P-3 got created by P.W.1 cannot be accepted, for the finding of the Court is based on wrong assumption of facts. The lower Court has given undue weightage to minor discrepancies. It is well laid principle of law that in weighing evidence, it must be remembered that there are discrepancies of truth as well as discrepancies of falsehood, and that a too minute attention to immaterial discrepancies may lead to serious failure of justice. Accordingly, Point No. 3 is answered as follows:-
The lower Court is not right in rejecting I.A.No.VIII holding Ex.P-3 is a got up document and the lower Court is also not right in holding that I.A.No.VIII is not maintainable in view of I.A.No.VII is liable to be rejected. As already held by this Court, I.A.No.VII is to be allowed, as such S.A.No.VIII is maintainable and it will also in view of the facts and circumstances of the case to be allowed,
30. For the reasons stated above, these Revision Petitions will have to be allowed and are allowed. The order of the lower Court on I.A.Nos. VII and VIII are hereby set aside and both the applications are allowed. As the case is very old and the parties have been litigating for more than few decades, it is apt to direct the lower Court to complete the proceedings within two months from the date of receipt of this Order.
In view of the peculiar facts and circumstances of the case, I pass no order as to costs.