' MUHAMMAD YUNUS SURAKHVI, C.J.---This appeal by way of leave of the Court, has been directed against the judgment passed by the High Court on 20-2-2002, whereby the warrant of possession, to the extent of rights of the appellants, herein, was set aside.
2. The necessary facts, giving rise to the present appeal, are that pro forma respondents Nos.1 to 4 and others filed a suit for possession regarding land comprising Survey No.441, measuring 4 Kanals, 12 Marlas, situate in village Lehri Tehsil Mirpur, in the Court of Additional Sub-Judge, Mirpur. The suit was decreed on 30-12-1989. The appeals taken by respondents were dismissed up to the Supreme Court and after the judgment of the Supreme Court pronounced on 6th December, 1994, an application for execution of decree was filed in the trial Court by the appellants-decree-holders.
The trial Court on 24-2-1998, issued warrant for possession of land against the respondent, judgment-debtors. An appeal before the District Judge was dismissed on 31-7-2001. The respondents filed a revision petition against the order of District Judge, Mirpur before the High Court which was partly accepted vide impugned judgment dated 20-2-2002, observing therein, that decree to the extent of rights of appellants is not executable as they have alienated the land falling within their shares. It is the aforesaid judgment of the High Court dated 20-2-2002, which is the subject-matter of present appeal.
3. In support of the appeal, it was vehemently contended by Ch. Muhammad Azam Khan, the learned counsel for the appellants, that it is settled law that a decree has to be executed in accordance with its terms and conditions and the executing Court cannot go beyond the terms of the decree, thus the High Court has erroneously set aside the warrant of possession to the extent of appellants. The learned counsel further contended that the impugned judgment of the High Court is patently illegal, erroneous and bad in law. The learned counsel also emphasized that even if the appellants-decree-holders, have sold their share, still the decree can be executed on the application moved by them or by the transferees as the interest of both the transferors and transferees is the same. The learned counsel for the appellants placed reliance upon a case titled Harnand Rai-Phul Chand and others v. Rup ChandChiranji Lal and another (AIR 1933 Lah. 638), wherein it was observed that "person appearing on the face of the decree as the decree-holder is the person entitled to execution. Therefore, where the transferee of a decree has not made a legal application for execution of the decree under Order XXI, rule 16, the executing Court is bound to allow the execution at the instance of the transferor, even after the date of the transfer, till the transfer is recognized by the Court."
4. Raja Hassan Akhtar, the learned counsel for the respondents, strongly defended the impugned judgment passed by the High Court and submitted that there being no illegality and infirmity in the judgment under challenge, the same is, therefore, not liable to be set aside. The learned counsel further contended that the appellants-decree-holders, have alienated their total share, therefore, they are not entitled for the execution of decree' as the decree no more exists in their favour. The learned counsel for the respondents in support of his contention placed reliance upon a case titled Jugalkishore Saraf v. M/s. Raw Cotton Co. Ltd. (AIR 1955 SC 376).
5. After hearing the respective contentions of the learned counsel for the parties and perusing the record, we are of the firm opinion, that the original, decree-holder can move an application for execution of the decree under Order XXI, rule 16 of Civil Procedure Code. So long as the transferee's right to execute the decree is not recognized by the Court after a decree-holder transfers his right to some other person, that person has to apply in the Court under section 146 of Civil Procedure Code to substitute his name in place of decree-holder and until that procedure is adopted by the transferee, the transferor is not debarred from the execution of the decree which originally exists in his name. Our aforesaid view is supported by the authorities which may usefully be kreproduced below:-- "In a case titled Ch. Muhammad Ishrat Ali and others v. Molvi Sayed Raza (AIR (32) 1945 Oudh. 225), it has been laid down that "by taking an assignment by a person in whose favour the decree was passed, the assignee does not become a decree-holder but he is put in a position to make an application for its execution under Order XXI, rule 16. There is, however, nothing in the law to suggest that though the transferee of a decree becomes entitled to apply for execution , as a consequence of assignment of the decree,. The original decree-holder thereby becomes incapable of making an application for its execution. So long as the transferee's right to execute the decree is not recognized by the Court, it is the original decree-holder who can make an application for execution. Order XXI, rule 16 simply regulates procedure and does not affect substantive rights, and though the transfer of a decree operates from the date of the transfer, the transferee cannot execute it until he has obtained an order under that rule. It may be that after recognition is accorded by the Court to the transferee of a decree, and the transferee is allowed to execute it under Order XXI, rule 16, the Court will not entertain an application by the original decree-holder for execution of the same decree. But so long as this is not done, the decree-holder's right to apply for execution of his decree remains unaffected."
' In a case titled Salamatmal v. Mt. Nurkhatun and others (AIR 1933 Sind 119), it was held that "the original decree-holder assigning his rights under a decree has a right to execute his decree unless and until his name is removed and replaced by the name of the assignee."
' In another case titled Atma Ram and others v. Shyama Kumar Singh and others (AIR (35) 1948 Oudh. 176), it was held that "section 146 of the Code authorizes the taking of proceedings or the making of an application by or against a person claiming under the decree-holder. It follows that a decree may be executed either by the decree-holder himself or by those who claim under him namely his assignees. The fact that Order XXI, rule 16, Civil Procedure Code makes a provision for execution of the decree by the assignees does not debar the person in whose name the decree stands from taking an action for satisfaction of the decree or for keeping his decree alive
6. The authority cited by the learned counsel for the respondents, Raja Hassan Akhtar, has no relevancy to the facts and circumstances of the case.
7. In the case in hand,. It is an admitted fact that the appellants-decreeholders, have sold the land falling within their shares to the transferees but still the decree exists in the name of appellants. The transferees' names have not been substituted so far in place of appellants' thus the appellants- decreeholders, are competent under law to get the execution of the decree passed in their favour.
The High Court fell in error by observing that the appellants-decree- holders, after alienating the land have become incompetent to get the execution of decree which view is not correct in our humble estimation.
In the light of what has been stated above, by accepting the appeal, we set aside the judgment and decree passed by the High Court on 20-2-2002. The appellants, decree-holders, may seek the relief for execution of decree from the Court of competent jurisdiction. In the circumstances of the case, we pass no order as to costs.