S.146 C.P.C. allows any person claiming under another to maintain an application for execution of a decree, even if their position may not be that of a transferee of the rights under the decree as contemplated under O. XXI R.16.

1. The dispute as to the right to execute the decree in O. S.195/1950 on the file of the Nedumangad Munsiff's Court has given rise to this Second Appeal. The properties involved in the suit belonged to the original plaintiff and, as the owner of the equity of redemption of these properties, he instituted the suit for redeeming the properties from the defendant on payment of the redemption price due to the defendant. During the pendency of that suit, the plaintiff assigned all his rights in the equity of redemption of the properties, in favour of the appellant and directed him to get recovery of possession of the properties from the defendant on payment of the redemption price that may be found to be due to them. There was also a direction in the deed of assignment that the assignee may get himself impleaded as additional 2nd plaintiff in the suit and carry on further proceedings towards redemption of the mortgage and recovery of possession of the properties. However, the assignee did not get himself impleaded as the additional 2nd plaintiff at the trial stage of the suit. Subsequent to the passing of the decree in the suit, a joint execution application was filed by the original plaintiff and his assignee on 20-1-1953 (E. P. No. 26 of 1953). In that execution petition it was stated that the assignee, who is the present appellant, had become the owner of the decree and that he may therefore be impleaded as the additional 2nd plaintiff and allowed to execute the decree. This petition was opposed by the defendant on the ground that there has not been a valid transfer of the decree as contemplated by Order XXI, R.16, C. P. C., and that therefore the first plaintiff's assignee cannot be allowed to execute the decree. The execution court overruled this objection and held that the joint execution application filed by the original plaintiff and his assignee is in itself sufficient to operate as an assignment of the decree in favour of the present appellant and that he is entitled to proceed with the execution. On appeal by the defendant, the lower appellate court came to a different conclusion and held that there has been no valid assignment of the decree and that the first plaintiff's assignee is not entitled to execute the decree. The assignee has come up in Second Appeal challenging the correctness of the view taken by the lower appellate court.

2. The original plaintiff instituted the suit for recovery of possession of the properties on redemption of the mortgage in favour of the defendant on 1-4-1950. Subsequently all his rights in the equity of redemption of the properties were assigned by him in favour of the present appellant on 16-10-1950. The suit was pending even then and it was decreed only on 27-11-1951. Since the decree had not come into existence on the date of the assignment in favour of the appellant, it is obvious that the assignment could not be of the rights under the decree. There is also no specific agreement in the deed of assignment to transfer the rights under the decree that may be subsequently passed What is stated in the deed of assignment is that all the rights of the assignor in respect of the equity of redemption of the properties, including the right to prosecute the suit and to get recovery of possession of the properties from the defendant, have been transferred to the assignee. Such being the nature of the assignment, it cannot be said that under that document the interest of the decree-holder in the decree was transferred by assignment in writing or by operation of law, within the meaning of Order XXI, R.16, C. P. C. It is mainly for this reason that the lower appellate court came to the conclusion that the assignee of the original plaintiff is not entitled to execute the decree in the case. The decisions in Chempakakutty v. Rajaian Nadar 1951 K. L T. 787= (1952) 7 D. L. R. T. C. 184 and in Oommen Chakko v. Avira Varghese.1952 K. L. T. 334= (1952) 7 D. L. R. T C. 498) are no doubt in supp