( 1 ) ON 14th July, 1977 a decree for Rs. 69, 577. 61 paise with proportionate costs was passed in favour of the decree holder and against all the judgment debtors. The decree holder was also granted interest on the principal amount of Rs. 50,077. 61 paise @ 6% per annum from the date of the decree till realisation. The decree holder filed execution of the decree on January 9, 1978. She expired on March 14, 1980. It appears that the decree holder had executed a Will assigning the decree in favour of judgment debtors 2 and 3. Probate of the Will was granted by the Court of the District Judge on 12th February, 1987. Judgment debtor No. 4 also expired on 20th March, 1990. Judgmenit debtors 2 and 3 are now seeking to execute the decree against the legal heirs of judgment debtor No. 4. The legal heirs of judgment debtor No. 4 have objected to the execution of the decree against them and have submitted that the decree cannot be executed by judgment debtors 2 and 3 on the basis of the Probate granted in their favour by the Court of the District Judge. Delhi.

( 2 ) THE short question involved in this case is whether the applicants who were also the judgment debtors can execute the decree against one or the other judgment debtors even assuming the share of the decree holder has devolved upon them under the Will.

( 3 ) MR. Gopal Narain Aggarwal, learned counsel for the legal heirs of judgment debtor No. 4 has contended that under Order XXI Rule 16 Civil Procedure Code where the decree is for payment of money against two or more persons and interest of the decree holder has been transferred to one of the judgment debtors, the decree shall not be executed against others. The, therefore, submits that even assuming that the judgment debtors, 2 and 3 have been granted Probate, of the Will executed by the decree holder, they have no right to execute the decree against the legal heirs ol judgment debtor No. 4 as they themselves were judgment debtors. Order XXI Rule 16 of the Code reads as under:-

"where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may he executed in the same manner and subject to the same conditions as if the application were made by such decree holder. Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution; Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not he executed against the others. Explanation : Nothing in this rule shall affect the provisions of Section 146, and a transferee of rights in the property, which is the subject-matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule. ]"

( 4 ) A plain reading of Order XXI Rule 16 Civil Procedure Code supports the contention of Mr. Aggarwal that where the interest of the decree holder has been assigned or transferred to one of the judgment debtors, the decree cannot be executed against other judgment debtors. Mr. Kaul, learned Senior counsel, appearing for the decree holder, however, submits that there is an explanation in Order XXI Rule 16 Civil Procedure Code according to which the provisions of Section 146 of the Code have not been affected and a transferee of rights in the property, which is the subject-matter of the suit, can apply for execution ol the decree even if he had no right to execute the same under Order XXI Rule 16 CPC. To appreciate the contentions of Mr. Kaul, one has to read Section 146 of the Code, which is as under