In cases of testamentary succession, execution of decrees does not necessitate notice under Order XXI Rule 16 C.P.C. as it constitutes transfer by operation of law.

ORDER

It is a case wherein a decree for specific performance was granted, which was upheld by the first and second appellate court, thereby it has become final and conclusive. Later on, a sale deed was executed in execution of the decree and the same was engrossed on stamp paper. The petitioner is the 6th respondent in E.P.No.137/2010. Under the impugned order, the execution court directed delivery of the property based on the sale deed executed. It is under challenge on the ground that no notice as mandated under Rule 16 of Order XXI C.P.C. was issued and that the decree was executed not in compliance with the requirement under that provision. Further, it is submitted that an assignee of the decree is bound to follow the mandate under that provision by issuing notice in execution of the decree both to the transferor and the judgment-debtor. But in the instant case, what is involved is a testamentary succession and hence, the question whether a testamentary succession though involves transfer of interest would come under the purview of Order XXI Rule 16 C.P.C. requires consideration.

2. In order to resolve the issue, it is necessary to have an understanding with respect to the scope and ambit of Rule 16 of Order XXI C.P.C., which is extracted below for reference:

“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 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 be 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.”

(emphasis supplied)

3. A plain reading of the said provision would make it clear that Rule 16 would operate only when there is a transfer of interest in a decree either in whole or in part by the decree holder either by way of assignment in writing or by operation of law. The wording “by operation of law” stands for transfer effected under the provisions of any law, which may include a court sale, assignment made by the official receiver on behalf of an insolvent debtor and intestate succession. A Will or codicil being a testamentary document though originates from the act of testator would largely come under the sphere of succession, since it would operate only from the moment of death of testator/testatrix and all alienation, conveyance, encumbrance made over the property by the testator/testatrix would stand valid and binding on the subject of the testament and it would operate only with respect to any of the property included in the testament left out at the time of death of testator. Order XXI Rule 16 C.P.C. encompasses two types of transfers - (i) a transfer by assignment in writing and (ii) by operation of law. A document of testamentary succession viz., a Will or codicil, would largely fall under the sphere of transfer “by operation of law”, though it involves a transfer by writing. A “transfer by assignment in writing” may have an immediate effect of an “assignment” and would operate with immediate effect which is lacking in the case of a testamentary succession. The scope o