Holding

The Explanation added to Order XXI Rule 16 makes clear that nothing in the rule affects Section 146 CPC, and a transferee of rights in the subject‑matter of the suit may obtain execution of a decree without a separate assignment, thereby overturning the pre‑amendment position of Jugalkishore Saraf.

Summary

The appellants, Vaishno Devi Construction and others, claimed to be assignees of a decree holder (the late S.N. Kanungo) and sought execution of arbitration awards turned into decrees under Order XXI Rule 16 of the CPC. The dispute turned on whether the Explanation added to Order XXI Rule 16 by the 1976 Amendment Act, which states that the rule does not affect Section 146 CPC, alters the earlier position expressed in Jugalkishore Saraf that a written post‑decree assignment is required. The Supreme Court examined the legislative intent of the amendment, the Law Commission’s recommendations, and the interplay with Section 146 CPC. It held that the Explanation clarifies that a transferee of rights in the subject‑matter of the suit may apply for execution without a separate assignment of the decree, thereby superseding the pre‑amendment rule. Consequently, the Court set aside the lower courts’ orders rejecting the appellants’ objections and remitted the matter to the executing court, allowing the appeals.

Issues considered

The amendment (Explanation) to Order XXI Rule 16 of the CPC changes the legal position laid down in Jugalkishore Saraf regarding the need for a written assignment of a decree.
Whether a transferee of rights in the subject‑matter of a suit can invoke Section 146 CPC to obtain execution of a decree without a separate assignment of the decree.
Whether the Explanation overrides or co‑exists with Section 146 CPC.
Whether the appellants, as assignees of the decree holder, are entitled to file an application for execution under Order XXI Rule 16.

Legislation cited

Arbitration and Conciliation Act, 1996s. Section 2(1)(g)
Code of Civil Procedure, 1908s. Order XXI Rule 16, s. Section 146, s. Section 47
Code of Civil Procedure (Amendment) Act, 1976
Transfer of Property Act, 1882s. Section 5

Subjects

Execution of decreeAssignment of decreeOrder XXI Rule 16Section 146 CPCExplanation amendmentTransferee rightsArbitration awardLaw Commission recommendation

Judgment

[2021] 10 S.C.R. 59 59

VAISHNO DEVI CONSTRUCTION REP. THR. SOLE A
PROPRIETOR (D) THR. LRS & ANR.
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 18278 of 2017) B
OCTOBER 21, 2021
[SANJAY KISHAN KAUL AND B. R. GAVAI, JJ.]
Code of Civil Procedure, 1908 – Or.XXI, r.16 – Execution of
Decrees and Orders – Application for execution by transferee of C
decree – Addition of the Explanation to Or.XXI, r.16 of the CPC,
pursuant to recommendation made by the Law Commission of India
in its 54th Report on the CPC in 1973 – The Explanation was inserted
by Act 104 of 1976 [Code of Civil Procedure (Amendment) Act,
1976] w.e.f. 01.02.1977 – In Jugalkishore Saraf case, it was held
that Or.XXI, r.16 contemplates the actual transfer of the decree by D
an assignment in writing executed “after the decree is passed” and
thus, while a transfer of or an agreement to transfer a decree that
may be passed in future may, in equity, entitle the intending transferee
to claim the beneficial interest in the decree after it is passed, such
equitable transfer does not relate back to the prior agreement and E
does not render the transferee a transferee of the decree by an
assignment in writing within the meaning of Or.XXI, r.16 – Whether
the subsequent amendments to Or.XXI, r.16 changed the position of
law as laid down in Jugalkishore Saraf case – Held: The Explanation
was so added due to conflicting High Courts’ decisions on the
question, i.e., whether a person who does not have a written F
assignment of the decree, but who has succeeded to a decree holders’
right, is entitled to such decree u/s.146 CPC – The Law Commission
recommended amending Or.XXI, r.16 to clarify that it does not affect
the provisions of s.146 CPC and that a transferee of rights in the
subject matter of the suit can obtain execution of a decree without G
separate assignment of the decree – The objective appears to be to
not have multifarious proceedings to determine the issue of
assignment, but to determine the issue of assignment in the execution
proceedings itself – The objective of amending Or.XXI, r.16 by
adding the Explanation was to avoid separate suit proceedings being
filed therefrom and to that extent removing the distinction between H
59
60 SUPREME COURT REPORTS [2021] 10 S.C.R.

A an assignment pre the decree and an assignment post the decree –
Once the legislative intent is clear, and the law is amended, then the
earlier position of law cannot be said to prevail post the amendment
– The Explanation clearly stipulates that nothing in Or.XXI, r.16 of
the CPC would affect the provisions of s.146 and the transferee of
the right in property which is subject matter of a suit may apply for
B
execution of the decree without separate assignment of the decree
as required by law – Decree.
Allowing the appeals, the Court
HELD: 1.1. It is an admitted position that the Explanation
C was added to Order XXI Rule 16 which did not exist earlier,
pursuant to the recommendations made by the Law Commission
of India in its 54th Report on the Code of Civil Procedure, 1908.
The Explanation was so added due to conflicting High Courts’
decisions on the question, i.e., whether a person who does not
have a written assignment of the decree, but who has succeeded
D to a decree holders’ right, is entitled to such decree under Section
146 of the CPC. [Para 24][70-A-B]
1.2. The Law Commission recommended amending Order
XXI Rule 16 to clarify that it does not affect the provisions of
Section 146 CPC and that a transferee of rights in the subject
E matter of the suit can obtain execution of a decree without
separate assignment of the decree. The objective appears to be
to not have multifarious proceedings to determine the issue of
assignment, but to determine the issue of assignment in the
execution proceedings itself. [Para 25][70-D-F]
F 2. The objective of amending Order XXI Rule 16 of the
CPC by adding the Explanation was to avoid separate suit
proceedings being filed therefrom and to that extent removing
the distinction between an assignment pre the decree and an
assignment post the decree. Thus, what has been discussed even
in the judgment in Jugalkishore Saraf as a view based on the
G equitable principle was sought to be incorporated in Order XXI
Rule 16 of the CPC by adding the Explanation, something which
had not been done earlier. Once the legislative intent is clear,
and the law is amended, then the earlier position of law cannot be
said to prevail post the amendment. [Para 26][70-F-G; 71-A-B]
H
VAISHNO DEVI CONSTRUCTION REP. THR. SOLE PROPRIETOR 61
(D) THR. LRS v. UNION OF INDIA

3. While considering the divergent views of the High A
Courts, the Law Commission took note of the fact that two
different interpretations of Jugalkishore Saraf had been adopted.
Thus, the Law Commission really sought to clarify the legal
position so that the conflicting interpretation of the Supreme
Court judgment would not survive. The Explanation clearly
B
stipulates that nothing in Order XXI Rule 16 of the CPC would
affect the provisions of Section 146 and the transferee of the right
in property which is subject matter of a suit may apply for
execution of the decree without separate assignment of the decree
as required by law. [Para 27][71-B-D]
Jugalkishore Saraf v. M/s. Raw Cotton Co. Ltd. C
AIR 1955 SC 376:1955 SCR 1369 – referred to.
Penniah Pillai v. T. Natarajan Asari AIR 1968 Mad
190; K.N. Sampath Mudaliar v. Sakunthala Ammal 1964
2 MLJ 563; Prabhashinee Debi v. Rasiklal Banerji
1931 ILR 59 Cal 297; Purna Chandra Bhowmick v. D
Barna Kumari Devi AIR 1939 Cal 715; Satyanarayana
v. Arun Maik AIR 1955 AP 81; Ramnath v. Anardei
Devi AIR 1964 Pat 311 and Mani Devasia v. Varkey
Scaria (1960) Ker. LT 1077 – referred to.
Case Law Reference E
1955 SCR 1369 referred to Para 16
CIVIL APPELLATE JURISDICTION: Civil Appeal No.18278
of 2017.
From the Judgment and Order dated 13.02.2017 of the High Court F
of Calcutta, Circuit Bench at Port Blair in C.O. No.009 of 2017.
With
Civil appeal no.18279 of 2017.
J. K. Mishra, Sr. Adv., Ganesh Subbian, Gautam Singh, Krishna
Kumar Singh, Advs. for the Appellants. G
M. K. Mondal, K. V. Jagdishvaran, Ms. G. Indira, Habilila Nana,
Kamal Behari Panda, Ms. Mrinmayee Sahu, Advs. for the Respondents.

H
62 SUPREME COURT REPORTS [2021] 10 S.C.R.

A The Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J.
1. The contours of the legal controversy which arise for
consideration in the present appeal emanate from the plea of the appellants
claim based as an assignee of the decree holder in terms of Order XXI
B Rule 16 of the Code of Civil Procedure, 1908 (hereinafter referred to as
the ‘CPC’) in their application filed under Section 47 of the CPC by
taking recourse to Section 146 of the CPC read with Section 2(1)(g) of
the Arbitration &Conciliation Act, 1996 (hereinafter referred to as the
‘A&C Act’). The significant aspect is the addition of the explanation to
Order XXI Rule 16 of the CPC, which was added pursuant to the
C recommendation made by the Law Commission of India in its 54th Report
on the CPC in 1973, which in turn was a sequitur to the conflicting views
of the High Courts on the matter in issue.
The facts:
2. In order to appreciate the controversy, relevant facts are being
D set out. On 29.12.1995, a contract was awarded by the Union of India to
one Surendra Nath Kanungo @ S.N. Kanungo for executing the work
of extension of runway at Port Blair Airport (hereinafter referred to as
‘Works’). Shri S.N. Kanungo passed away in the year 2012 and is
represented by legal heirs in the present proceedings as respondent Nos.2
E to 7, while respondent No.1 is the contract awarding authority.
3. Shri S.N. Kanungo entered into an arrangement whereby the
Works were assigned to Vaishno Devi Constructions, a sole proprietorship
concern of Prabhat Bhushan Kanungo (appellant No.1 in CA No. 18278
of 2017). It appears that appellant No.2, Surya Prakash Kanungo was
also taking care of the work. A different part of the work was assigned
F
to BeeDee Builders, a sole proprietorship of Swapna Das and, once
again, apparently her husband Bijoy Kumar Das was playing a role in
executing the Works as the said two parties are impleaded as appellant
Nos.1 and 2 in CA No. 18279/2017. Shri S.N. Kanungo was a special
class contractor and it appears from the case set up by the appellants
G that they were to act on behalf of S.N. Kanungo to carry out the Works
for which they were to be paid monthly remuneration and hiring charges
of certain equipment that was to be provided by the appellants herein.
The appellants claim to have supervised the work of extension of runway
on behalf of Shri S.N. Kanungo but apparently some part of their dues
were not paid. Shri S.N. Kanungo is stated to have executed an
H
VAISHNO DEVI CONSTRUCTION REP. THR. SOLE PROPRIETOR 63
(D) THR. LRS v. UNION OF INDIA [SANJAY KISHAN KAUL, J.]

Assignment Deed along with a cheque in favour of Mr. Prabhat Bhushan A
Kanungo for Rs.1 crore as security on 27.10.1999 to secure payment of
such dues. The claims were in respect of both the appellants.
4. It appears that some disputes arose between Shri S.N. Kanungo
and respondent No.1 which were referred to arbitration and an award
was passed in his favour on 22.03.1999. Shri S.N. Kanungo received B
the money under the award on 28.01.2001.
5. Another reference was made in respect of another set of non-
payments claimed by Shri S.N. Kanungo from respondent No.1.The
dispute was referred to the sole arbitration of Shri T.K. Mishra, who
passed an award in favour of S.N. Kanungo on 31.10.2006. Respondent
C
No.1 filed proceedings before the High Court of Calcutta to set aside
the award under Section 34 of the A&C Act. The proceedings succeeded
in terms of an order of the learned single Judge of the High Court dated
28.09.2007. On appeal being preferred before the Division Bench of the
High Court, the judgment of the learned single Judge was reversed by a
judgment dated 03.03.2008 and the appeal was allowed. D
6. Shri S.N. Kanungo, in order to recover the amount, filed an
execution case before the District Judge, Port Blair, being Other Execution
Case No.01/2008.During the pendency of the execution proceedings,
respondent No.1 filed an SLP in the Supreme Court, being SLP(C)
No.21507/2008, challenging the judgment of the Division Bench dated E
03.03.2008 and seeking stay of the execution proceedings. Notice was
issued and stay of execution proceedings was granted in his favour.
During the pendency of the SLP, Shri S.N. Kanungo passed away in
2012 and was substituted by his legal heirs in both the SLP and the
execution proceedings. The Supreme Court ultimately dismissed the SLP
vide order dated 19.01.2016 making only an alteration of the rate of F
interest while observing that the interest awarded was on the higher side
and, therefore modifying it to 8% (simple interest) from the date of the
bill.
7. It is at that stage that the appellants in the two appeals before
us came into the proceedings by filing objections in the form of an G
application under Section 47 read with Order 22 Rules 1&2 of the CPC
read with Sections 2(1)(g) and 36 of the A&C Act.
8. The claims made by the appellants were on the basis of an
assignment made by Shri S.N. Kanungo and, thus, sought to keep any
order for release of the amount in abeyance in full or in part to protect H
64 SUPREME COURT REPORTS [2021] 10 S.C.R.

A their interests. It appears that the prayer for interim relief did not succeed
as the applications were dismissed on 08.04.2016.Ultimately on
26.12.2016, both sets of objections claiming a right in the decretal amount
were also rejected by the executing court on the basis that the Assignment
Deed and cheque had not been proved in those proceedings to establish
the fact of assignment. It may, however, be noted that there was no trial
B
in this matter before the executing court.
9. The aforesaid order was then sought to be assailed before the
Calcutta High Court by filing a civil revision petition which was dismissed
vide impugned judgment dated 13.02.2017. On the SLP being preferred,
notice was issued on 17.04.2017 and a direction to maintain status quo
C was also simultaneously issued pending disposal of the matter. Since the
dispute between the two sets of private parties would cause liability of
interest on respondent No.1, in terms of order dated 06.03.2018, the
request of respondent No.1 to deposit the decretal amount in the
executing court was accepted. One would presuppose that this amount
D would be kept in an interest-bearing deposit.
Appellants’ Submissions:
10. Learned counsel for the appellants sought to contend that the
appellants were the authorised assigned representatives of Shri S.N.
Kanungo. They relied on the amended provisions contained in Order 21
E Rule 16 of the CPC in their application under Section 47 of the CPC by
taking recourse to Section 146 of the CPC read with Section 2(1)(g) of
the A&C Act, claiming that Shri S.N. Kanungo voluntarily executed an
assignment deed on 27.10.1999, which is a document in writing, while
simultaneously issuing a cheque as security.
F 11. Order XXI of the CPC is titled as “Execution of Decrees and
Orders”. Rule 16 of Order XXI deals with “application for execution by
transferee of decree” and reads as under:
“Order XXI
Execution of Decrees and Orders
G
.... .... .... ....
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
H law, the transferee may apply for execution of the decree to the
VAISHNO DEVI CONSTRUCTION REP. THR. SOLE PROPRIETOR 65
(D) THR. LRS v. UNION OF INDIA [SANJAY KISHAN KAUL, J.]

Court which passed it; and the decree may be executed in the A
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 B
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. C
[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.]” D
12. It may be observed that the Explanation was inserted by Act
104 of 1976 (hereinafter referred to as the ‘Code of Civil Procedure
(Amendment) Act, 1976’) w.e.f. 01.02.1977 and has a material bearing
in the conspectus of the respective arguments. The recourse to Section
47 of the CPC in the application arises from this provision specifying the E
questions to be determined by the court executing a decree, and it reads
as under:
“47. Questions to be determined by the Court executing
decree.—(1) All questions arising between the parties to the suit
in which the decree was passed, or their representatives, and F
relating to the execution, discharge or satisfaction of the decree,
shall be determined by the Court executing the decree and not by
a separate suit.
[***]
(3) Where a question arises as to whether any person is or is not G
the representative of a party, such question shall, for the purposes
of this section, be determined by the Court.
[Explanation 1.—For the purposes of this section, a plaintiff whose
suit has been dismissed and a defendant against whom a suit has
been dismissed are parties to the suit. H
66 SUPREME COURT REPORTS [2021] 10 S.C.R.

A Explanation II—(a) For the purposes of this section, a purchaser
of property at a sale in execution of a decree shall be deemed to
be a party to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such
property to such purchaser or his representative shall be deemed
B to be questions relating to the execution, discharge or satisfaction
of the decree within the meaning of this section.]”
13. Section 146 of the CPC deals with the “Proceedings by or
against representatives” and reads as under:
“146. Proceedings by or against representatives.—Save as
C 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.”
D 14. It was, thus, the case of the appellants that their claim raised
a question to be determined by an executing court within the parameters
of Section 47 of the CPC in the context of the appellants claiming rights
under the assignment of Shri S.N. Kanungo (as per Section 146 of the
CPC). Section 2(1)(g) of the A&C Act being part of the definition clause
E reads as under:
“2. Definitions. —
(1) In this Part, unless the context otherwise requires,—
.... .... .... . ... . ...
F (g) “legal representative” means a person who in law represents
the estate of a deceased person, and includes any person who
intermeddles with the estate of the deceased, and, where a party
acts in a representative character, the person on whom the estate
devolves on the death of the party so acting;”
G 15. The provisions of the CPC were thus sought to be made
applicable to these proceedings for execution of an award which had
culminated in a decree in the capacity of an assignee/representative to
claim from Shri S.N. Kanungo on account of the assignment.
16. In the conspectus of the aforesaid dispute, the common case
H is that the judgment of this Court in Jugalkishore Saraf v. M/s. Raw
VAISHNO DEVI CONSTRUCTION REP. THR. SOLE PROPRIETOR 67
(D) THR. LRS v. UNION OF INDIA [SANJAY KISHAN KAUL, J.]

Cotton Co. Ltd.1 is of utmost significance. This is so as the failure of the A
appellants to succeed before the courts below is predicated on the
reasoning that this judgment of the Supreme Court covers the case against
the appellants. A specific reliance was placed on para 26, as per which
Order XXI Rule 16 contemplates the actual transfer of the decree by an
assignment in writing executed “after the decree is passed”. Thus,
B
while a transfer of or an agreement to transfer a decree that may be
passed in the future may, in equity, entitle the intending transferee to
claim the beneficial interest in the decree after it is passed, such equitable
transfer does not relate back to the prior agreement and does not render
the transferee a transferee of the decree by an assignment in writing
within the meaning of Order XXI Rule 16 of the CPC. C
17. Learned counsel for the appellants sought to invite our attention
to certain other paragraphs in support of the proposition they seek to
advance, more specifically paras 52, 54, 56 and 59. Earlier judicial
precedent of the Bombay High Court and the Calcutta High Court were
referred to for the proposition that Order XXI Rule 16 was not intended D
to apply to cases where serious contest arose with respect to the rights
of persons to an equitable interest in a decree. Two views were mentioned,
i.e., the strict view about the requirement of existence of a decree; and
the other view based on equity, when an agreement has been entered
into in writing albeit prior to the decree which may be optional for the
courts depending on the extent of investigation required to arrive at a E
conclusion.2 This is followed up by a discussion in para 53 of the judgment
on the scope of Order XXI Rule 16 of the CPC. The SC opined that until
a person applying for execution establishes his title as the transferee of
a decree, he cannot claim the benefit of that provision. Such assignment
can be in writing or by operation of law. In this behalf Section 5 of the F
Transfer of Property Act, 1882 defines “transfer of property” as an act
by which the transferor conveys property in present or in future to the
transferee or transferees. In that context it was observed that a decree
which is the subject matter of transfer must be in existence as on the
date of the transfer. The words “in present or in future” qualify the word
“conveys” and not the word “property” in Section 5 and would, thus, not G
operate to a decree which would come into existence in the future. Such
a decree could not be said to be transferred by an assignment in writing
and the matter resting merely in a contract to be performed in the future
1
AIR 1955 SC 376.
2
Prabhashinee Debi v. Rasiklal Banerji 1931 ILR 59 Cal 297. H
68 SUPREME COURT REPORTS [2021] 10 S.C.R.

A which may be specifically enforced as soon as the decree was passed
would be no transfer automatically in favour of the transferee of the
decree when passed. The discussion ends with the opinion that any
warrant for importing this equitable principle while construing the statutory
provision enacted under Order XXI Rule 16 of the CPC would not be
appropriate as it does not prescribe any mode in which such an assignment
B
in writing has to be executed in order to effectuate a transfer of a decree.
18. The Supreme Court noticed that the High Court of Calcutta in
Purna Chandra Bhowmick v. Barna Kumari Devi3 had applied the
equitable principle and held that the plaintiff in whose favour the defendant
had executed a mortgage bond assigning by way of security the decree
C that would be passed in a suit instituted against a third party for recovery
of money due on unpaid bills for work done, was entitled to a declaration
that he was an assignee of the decree passed in favour of the defendant
and as such, was entitled to realise the decretal debt either amicably or
by execution. The high court further held that there could be no objection
to decide a question involving investigation of complicated facts or difficult
D
questions of law in execution proceedings, as Section 47 of the CPC
authorised the Court executing the decree to decide all questions arising
therein and relating to execution of the decree, as it facilitates adjudication
and obviates the necessity of filing a separate suit for determination of
the same.
E 19. A distinction was made in respect of transfer of an actionable
claim within the meaning of Section 3 of the Transfer of Property Act,
1882. In cases of transfer of book debt or property coming within the
definition of actionable claim, the same necessarily involved transfer of
a transferor’s right in a decree which may be passed in his favour in a
F pending litigation and the moment a decree is passed in his favour by the
court of law, that decree is automatically transferred in favour of the
transferee by virtue of the assignment in writing already executed by
the transferor. The book debt does not lose its character of a debt by its
being merged in the decree and without anything more, the transferee is
entitled to the benefit of the decree passed by the court in favour of the
G transferor. The transferee of an actionable claim would, thus, step into
the shoes of the transferor and claim to be transferee of the decree by
virtue of the assignment in writing executed by the transferor in his
favour. The transferee could, therefore, claim to execute the decree
under Order XXI Rule 16 of the CPC.
H 3
AIR 1939 Cal 715.
VAISHNO DEVI CONSTRUCTION REP. THR. SOLE PROPRIETOR 69
(D) THR. LRS v. UNION OF INDIA [SANJAY KISHAN KAUL, J.]

20. In the conspectus of the discussion what was submitted by A
learned counsel for the appellant was that the amendments made to the
CPC vide the Code of Civil Procedure (Amendment) Act, 1976 are of
significance as the judgment is pre that amendment. Of course, this was
an alternative plea to the plea based on a claim of an assignment deed
being an actionable claim.
B
Respondents’ Submissions:
21. The respondents, on the other hand, disputed the right of the
appellants and claimed that the Assignment Deed itself is a disputed
document which had not seen the light of the day for 17 years till 2016,
and did not find a mention in the appellants’ legal notices. The appellants
could have taken recourse to the Assignment Deed when an award was C
delivered in favour of late Shri Surendra Nath Kanungo on 22.03.1999.
The cheque given as a security could have been encashed when the
awarded money was paid to Shri S. N. Kanungo in 2001. The appellants
took no steps in pursuance of that award but have raised the issue only
at the stage when the second award had been made in 2006. Notably, D
the second award was confirmed by the Supreme Court as well. The
appellants were not the legal representatives of Shri S.N. Kanungo, but
at best that was an independent claim that could be adjudicated in
appropriate civil proceedings. The decree not being in existence, the
respondent claimed they were fully covered by the judgment in
Jugalkishore Saraf4 and that the amendments to Order XXI Rule 16 E
would not change the position of law as laid down therein.
22. It was pleaded that the appellants were amongst such persons
who were engaged by Shri S.N. Kanungo and had been paid their dues.
There was no amount outstanding and nothing was owed to them. The
Assignment Deed and the cheque dated 27.10.1999 were fraudulent F
documents and the letter head and the signed cheque of Shri S.N.
Kanungo had been misused.
Conclusion:
23. On analysis of the submissions there is little doubt that the
impugned judgments would have been completely in accordance with
G
law if the amendments were not made in 1976 and would have been
fully covered by the judgment in Jugalkishore Saraf5. Thus, the only
aspect which we have to consider is whether that amendment made any
difference to the legal position as enunciated in the said judgment.
4
(supra)
5
(supra) H
70 SUPREME COURT REPORTS [2021] 10 S.C.R.

A 24. It is an admitted position that the explanation was added to
Order XXI Rule 16 which did not exist earlier, pursuant to the
recommendations made by the Law Commission of India in its 54th Report
on the Code of Civil Procedure, 1908. The Explanation was so added
due to conflicting High Courts’ decisions on the question, i.e., whether a
person who does not have a written assignment of the decree, but who
B
has succeeded to a decree holders’ right, is entitled to such decree under
Section 146 of the CPC.
25. In Penniah Pillai v. T. Natarajan Asari6 the Madras High
Court decided this question in the affirmative. The high court gave liberty
to the transferees to avail of Section 146 if they did not fall within the
C provisions of Order XXI Rule 16 of the CPC and, thus, would cover
transferees of a property after the decree was passed. In this behalf the
learned Judge disagreed with an earlier judgment of the Madras High
Court in K.N. Sampath Mudaliar v. Sakunthala Ammal7 opining that
Section 146 of the CPC could not have the effect of overriding Order
D XXI Rule 16 of the CPC. The Law Commission agreed with the view
taken in the former judgment (which was delivered at a later point of
time) and further noted that this view was supported by the High Courts
of Andhra Pradesh 8, Patna 9 and Kerala 10 as well. Thus, the Law
Commission recommended amending Order XXI Rule 16 to clarify that
it does not affect the provisions of Section 146 and that a transferee of
E rights in the subject matter of the suit can obtain execution of a decree
without separate assignment of the decree. The objective appears to be
to not have multifarious proceedings to determine the issue of assignment,
but to determine the issue of assignment in the execution proceedings
itself.
F 26. In the conspectus of the aforesaid we are of the view that the
objective of amending Order XXI Rule 16 of the CPC by adding the
Explanation was to deal with the scenario as exists in the present case,
to avoid separate suit proceedings being filed therefrom and to that extent
removing the distinction between an assignment pre the decree and an
G assignment post the decree. Thus, what has been discussed even in the
6
AIR 1968 Mad 190.
7
1964 2 MLJ 563.
8
Satyanarayana v. Arun Maik AIR 1955 AP 81.
9
Ramnath v. Anardei Devi AIR 1964 Pat 311.
10
Mani Devasia v. Varkey Scaria (1960) Ker. LT 1077.
H
VAISHNO DEVI CONSTRUCTION REP. THR. SOLE PROPRIETOR 71
(D) THR. LRS v. UNION OF INDIA [SANJAY KISHAN KAUL, J.]

judgment in Jugalkishore Saraf11 as a view based on the equitable A
principle was sought to be incorporated in Order XXI Rule 16 of the
CPC by adding the Explanation, something which had not been done
earlier. Once the legislative intent is clear, and the law is amended, then
the earlier position of law cannot be said to prevail post the amendment
and it is not in doubt that the present case is one post the amendment.
B
27. We may further add that while considering the divergent views
of the High Courts, the Law Commission took note of the fact that two
different interpretations of Jugalkishore Saraf12 had been adopted.
Thus, the Law Commission really sought to clarify the legal position so
that the conflicting interpretation of the Supreme Court judgment would
not survive. The Explanation clearly stipulates that nothing in Order XXI C
Rule 16 of the CPC would affect the provisions of Section 146 and the
transferee of the right in property which is subject matter of a suit may
apply for execution of the decree without separate assignment of the
decree as required by law. No doubt the appellants are not parties in the
suit proceedings but they claim as assignees of the decree holder. D
28. We make it clear that we are not going into the validity of the
document, i.e., the Assignment Deed or the cheque as that would be a
matter to be decided by the executing court. The question was as to
whether at the threshold, the appellants’ objection could be rejected on
the ground that they were assignees who had acquired the rights prior to E
the passing of the decree. The rest of the job would be of the executing
court, despite the considerable prolongation which has taken place. We
may only add that our endeavour to see that an amicable solution is
found by the parties was not successful, thus we have little option but to
set aside the impugned judgments and remit the matter back to the
executing court for determination in terms of the judgment of this Court. F
Considering the lapse of time that has already taken place, the executing
court will endeavour to give its consideration as early as possible.
29. The appeals are accordingly allowed leaving the parties to
bear their own costs.
G
Devika Gujral Appeals allowed.

11
(supra)
12
(supra) H