O.21 R. 16 CPC | Transferee Of Property Can Apply For Execution Of Decree Without Separate Assignment Order: Bombay High Court

A single judge bench of Sandeep V. Marne was considering the petitioner's challenge to the order of the Appellate Bench that allowed the Revision Application filed by respondent no. 1 against the order of the Small Causes Court, Mumbai dated 19 April 2024.

Before the Small Causes Court, the petitioner had filed application for execution of the decree, for eviction against respondent no. 1. The Small Causes Court issued a warrant of possession in favour of the petitioner while rejecting all the objections raised by respondent no.1 on 19 April 2024.

The Appellate Bench had directed the Small Causes Court to first decide on the objection raised by respondent no. 1 regarding the maintainability of the execution proceedings and had stayed the possession warrant. It held that the mere transfer of property did not amount to assignment of decree under Order 21 Rule 16 CPC and thus set aside order of 19 April 2024.

Amendment of Order 21 Rule 16 CPC

The High Court noted that the Appellate Bench failed to consider the amendment in Order 21 Rule 16 of CPC.

Explanation O21 R16 added in 1977 provided that “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.” Thus, the Explanation indicates that a person who has succeeded to a decree holders' right is entitled to execution decree under Section 146 CPC, without a separate assignment of the decree.

The Court referred to the Vaishno Devi Construction vs. Union of India (LL 2021 SC 580), where the Supreme Court held that the Explanation added to O21 R16 makes it clear that the earlier position of law, which required a separate assignment of the decree, would not prevail post the amendment.

The High Court observed that even though the Appellate Bench reproduced the said provision, it failed to take note of the amendment and relied on cases which are no longer good law. It held that the Appellate Bench committed a grave error in relying on the case of Jugalkishore Saraf vs. Raw Cotton Co. Ltd (AIR 1955 SC 376), a case pronounced before Vaishno Devi and before the Explanation was added to O21 R16.

“Surprisingly, though the Appellate Bench has reproduced Rule 16 of Order 21 in its judgment, it failed to notice that after delivery of judgment in Jugalprasad Saraf, Explanation has been inserted in Rule 16 obviating the need for separate assignment of decree and enabling transferee of the property to apply for execution of decree.”

The Court held that the Appellate Bench set aside the order of the Executing Court based on erroneous reasoning. It thus quashed the order of the Appellate Bench and stated that the petitioner could seek execution without an assignment of the decree.

New objection raised by Respondent no. 1

Before the Small Causes Court/Executing Court, all the objections raised by respondent no. 1 regarding the maintainability of the execution proceedings were dismissed. The Small Causes Court had noted that objections could not be considered under Section 47 CPC and thus issued a possession warrant under O21 R35 CPC on 19 April 2024.

Respondent no. 1 then raised a new ground regarding lack of jurisdiction of Small Causes Court to pass the execution decree in view of the provisions of Section 22 of the Maharashtra Rent Control Act and also prayed for stay of possession warrant. The Small Causes Court issued notice with respect to this new objection petition, but rejected the application for stay of possession warrant.

However, the Appellate Bench stayed the possession warrant on the ground that a new objection was raised before the Small Causes Court.

The High Court was of the view that the order of the Small Causes Court dated 19 April 2024 had attained finality. It remarked “Merely because the First Respondent has filed one more Objection Petition, maintainability of which is yet to be decided, the same was not a ground for the Executing Court to stay the warrant of possession. In my view, the process of raising and decision of objections by the Executing Court is already over.”

It thus held that the stay on the warrant of possession by the Appellate Bench due to the filing of a new objection petition was incorrect.

With respect to the contention of the petitioner that respondent no. 1 could not raise a new objection before the Small Causes Court when previous objections were already rejected, the High Court noted that “It appears that the objection of jurisdiction sought to be raised by the First Respondent before the Executing Court with respect to Section 22 of the Maharashtra Rent Control Act requires conduct of factual enquiry about his nature of tenancy.”

It observed that the as the objection petition was still pending, it could not exercise its powers to decide the question of objection until it is first decided by the Small Causes Court.

Case title: Mr. Momin Zulfikar Kasam vs. Ajay Balkrishna Durve & Anr. (Writ Petition No. 9256 OF 2024)