JUDGEMENT :- The fifth respondent in E. P. 209 of 1957 in O.S. 28 of 1944, a petition for delivery of possession of certain properties, is the appellant herein.

2. One Ponnammal, through her power of attorney, Nataraja Asari, the contesting respondent herein, filed a suit O. S. No. 28 of 1944, Sub Court, Madurai, against 29 defendants for delivery of possession. A decree was passed on 16-4-1944. Defendant 28 filed an appeal, A. S. 290 of 1945. Pending the appeal on 9-3-1947 Ponnammal transferred all her rights in favour of the respondent, Nataraja Asari for Rs. 8350. On 16-7-1947 Ponnammal died, and Nataraja Asari was brought on record in the appeal. One Lakshmanan claimed that he was entitled to come on record as the legal representative through a will left by Ponnammal. Lakshmanan was also brought on record in the appeal. A. S. No. 290 of 1945 preferred by the 29th defendant was dismissed on 9-8-1950.

3. Nataraja Asari sought to execute the decree by filing E. P. 373 of 1950 He prayed for delivery of properties. This petition was opposed by Lakshmanan, who claimed that he was the legal representative of the deceased Ponnammal. Lakshmanan filed a memorandum of objection and contested the right of the petitioner to execute the decree, and the executing court found that the dispute between Nataraja Asari and Lakshmanan cannot be gone into under S. 47 C.P.C. It also held that Nataraja Asari was not an assignee decreeholder and therefore could not execute the decree.

4. Nataraja Asari filed O.S. 17 of 1952 in the Sub Court, Madurai for a declaration that he was entitled to execute the decree. The suit was dismissed by the Sub Court on 19-10-1953. Nataraja Asari preferred an appeal, A. S. 142 of 1954 of the High Court. The appeal was compromised and a compromise decree was passed, in which Nataraja Asari's right to execute the decree was recognised. Subsequently another execution petition E. P. 181 of 1954 was filed by Nataraja Asari on 8-7-1954 and that execution petition was dismissed on 30-10-1954. E. P. 209 of 1957, out of which the present second appeal arises, was filed on 14-9-1957.

5. E. P. 209 of 1957 is sought to be resisted on two grounds. It is stated that E. P. 373 of 1950 was not in accordance with taw and that Nataraja Asari was not an assignee decreeholder, who could execute the decree under Or. 21 rule 16 C.P.C.

6. It was submitted that in E. P. 373 of 1950 it was decided that the dispute was not one under S. 47 C.P.C. and that Nataraja Asari was not an assignee decreeholder. A faint suggestion was made that the order in E.P. 373 of 1950 could operate as res judicata for any further claim by Nataraja Asari as assignee decreeholder. This contention cannot be upheld, for Nataraja Asari filed a suit O. S. 17 of 1952 for declaration of his rights and he succeeded in getting his rights declared as the person entitled to execute the decree in A. S. 142 of 1954. It was then contended that the petition was not one in accordance with law This contention is based on the ground that the claim of Nataraja Asari as the assignee decreeholder was not accepted in E. P. 373 of 1950. In Rajitagiripathi v. Bhavani Sankar. AIR 1924 Mad 673, a Bench of this Court considered the case where persons claiming to be the assignee decreeholders filed an execution petition m 26-7-1919. In the petition the decreeholder prayed for recognising the transfer and for executing the decree. That petition was dismissed, because the execution of the decree had been stayed. It is in the subsequent proceedings the right of the transferee decree-holders was negatived. It was held that at the time when the application was made they were the transferee decreeholders by assignment from the original decreeholders and as such the proper persons to execute the decree. Thus it will be seen an execution petition by an assignee decreeholder. even though his rights as transferees were subsequently negatived the petition was held to be a step-in-aid of execution Their Lo

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