The main legal point established in the judgment is the procedure for bringing on record the legal representative of a deceased decree-holder in execution proceedings, as per S.42 of the C. P. C. and Order XXI R.16 C. P. C., and the relevant precedents.

1. The question for decision in this C. R. P. is whether a transferee executing court is competent to permit the legal representatives of the deceased decree holder to continue the execution proceedings without obtaining an order under Order XXI R.16 C. P. C. from the court which passed the decree.

2. The decree in the present case was passed by the Munsiff's Court, Punalur for recovery of a sum of Rs. 4136/- and interest thereon from the judgment-debtors. The decree was transferred for execution to the Munsiff's Court, Ettumanoor. The decree holder died on 14-4-1985 after instituting execution proceedings in the Munsiff's Court, Ettumanoor. The children of the decree holder filed two applications in the execution Court E. A. 57/85 and E. A. 152/85 for bringing them on record as the legal representatives of the deceased decree holder and to permit them to continue the execution proceedings. The transferee execution court by order dated 21st December, 1985 allowed these petitions and permitted the legal representatives to continue the execution proceedings. It is against this, the judgment debtors have come up in revision.

3. S.42 of the C. P. C. enacts that a court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. This general power of the transferee executing court is subject to sub-s. (4) wherein it is expressly provided that a court to which a decree is sent for execution shall not have the power to order execution at the instance of the transferee of the decree. Order XXI R.16 C. P. C. empowers the transferee of a decree by assignment in writing or by operation of law to apply for execution of the decree to the court which passed the decree and that court will permit the decree to be executed in the same manner and subject to the same conditions as if the application were made by the decree-holder himself. It is clear from R.12 of Order XXII that the provisions of R.3, 4 and 8 of the said Order do not apply to execution proceedings and the transferee executing court cannot by recourse to these provisions of Order XXII bring on record the legal representatives of a deceased decree holder and permit them to continue the execution proceedings.

4. Since, however, the execution proceedings bad been initiated by the decree holder himself, Order XXI R.16 C. P. C. permits the legal representatives to apply to the court which passed the decree for an order allowing them to continue the execution proceedings. A Full Bench of the Madras High Court in the decision in Venkatachalam Chetti v. Ramaswamy Servai ((1932) ILR 55 Madras 352) stated at page 366:

"If R.3 of Order XXII does not apply, it is argued thai there is no procedure provided in the Code for bringing on record the legal representative of a deceased decree-holder in execution proceedings. It is true that there is no specific machinery in the Code for that purpose, but does it necessarily follow from this that the Code prohibits the legal representative from making an application to continue the pending petition after substituting his name in it? I think not. If R.3 does not apply, then obviously there can be no objection for proceeding under S.146 of the Code and Order XXI. R.16. Under S.146, there being no other procedure provided, a legal representative of a decree-holder may make an application which may be made by the decree-holder, and under Order XXI, R.16, where a decree is transferred by assignment or operation of law as happens in the case of the death of a decree holder, the transferee may apply for the execution of the decree. Cases have held that, where a decree holder dies or transfers his decree pending the execution application filed by him, then the transferee decree-holder including his heir is entitled under O. XXI, R.16, to apply for continuing the pending execution application by substituting his name in it and that such an application is not to be considered as a fresh executi