ORDER

1. Learned counsel for the petitioner is heard on the question of admission.

By this petition preferred under Article 227 of the Constitution of India, the petitioner / judgment debtor has challenged the order dated 18.4.2024 passed by the Appellate Court affirming the order dated 19.1.2022 passed by the executing Court, whereby his objection to the execution of the decree by the respondent had been rejected.

2. The facts of the case are that on the basis of a compromise having been arrived at between the plaintiff and defendant, civil suit pending between them was disposed off by judgment and decree dated 24.4.2007. As per the compromise decree, defendant had to deliver possession of the suit property to the plaintiff by 21.4.2011. Thereafter, plaintiff sold the suit property to one Smt. Rashida Bee by a registered sale-deed in the year 2008. In the sale-deed, it was stated that the purchaser would have the right to execute the decree passed in favor of the seller in the aforesaid civil suit. Subsequently, Smt. Rashida expired and her legal representative, her son Hatim Kanchwala filed an application before the executing Court for execution of the decree in terms of Order 21 rule 11, 16 of the CPC.

3. In those proceedings, an objection was filed by the judgment debtor under section 47 of the CPC submitting that Hatim Kanchwala does not have any right to file the execution proceedings since the same is not in conformity with the provisions of Order 21 rule 16 and section 146 of the CPC. It has not been proved that there was any valid authorization by the decree holder in favor of Hatim Kanchwala to file the execution. Without permission of the Court and without giving opportunity of hearing to the objector, the execution could not have been filed. The execution proceedings hence deserve to be dismissed. Reliance was placed on the decision of the apex Court in Vaishno Devi Construction Rep. Thr. Sole Proprietor (D) Thr. Lrs and Another v. Union of Inida and Others, AIR 2021 SC 5309.

4. By the impugned order, the objection of the judgment debtor has been rejected by the executing Court holding that Hatim Kanchwala is competent to file application for execution of the decree on the basis of the assignment made in his favor.

5. Section 146 and Order 21 rule 16 of the CPC read as under:-

"Section 146 Proceedings by or against representatives. - Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person then the proceeding may be taken or the application may be made by or against any person claiming under him.

Order XXI Rule 16. Application for execution by transferee of decree.—

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 be 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 judgmentdebtor, 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 be executed against the others."

6. As per Order 21 rule 16 of the CPC, where interest of a decree holder in the decree is transferred by assignment, the transferee may apply for execution of the decree. In the proviso it has been stated that when the decree has been transferred by assignment, notice of the execution application shall be given to the transferor and the judgment debtor and the decree shall not