The Allahabad High Court has held that an execution proceeding is not rendered a nullity merely because the name of a joint decree-holder who had died before its institution continued to be shown in the execution application, where the execution was invoked by a surviving joint decree-holder competent to execute the whole decree.

Order XXI Rule 15 of the Code of Civil Procedure permits any one or more of the persons in whose favour a decree has been passed jointly to apply for execution of the whole decree for the benefit of them all and, where one of them has died, for the benefit of the survivors and the legal representatives of the deceased.

Justice Dr. Yogendra Kumar Srivastava held,

“The question, therefore, cannot be answered merely by asking whether the deceased decree-holder was alive on the date on which the execution application was filed. Plainly, he was not, and no execution application could have been instituted by him after his death. The material question is whether the mere inclusion of his name, along with that of the surviving joint decree-holder, in the execution application renders the entire execution proceeding a nullity notwithstanding the independent right of the surviving joint decree-holder to execute the decree.”

The dispute arose out of SCC Suit No. 19 of 2003 filed by Vinod Kumar and Anil Kumar for the ejectment of Jaipal and three others. The suit was decreed on 05.07.2014. Vinod Kumar died while the revisions against the decree were pending, his wife and son were brought on record, and the revisions were dismissed on 09.05.2023.

Execution Case No. 01 of 2023 was filed on 20.10.2023, but the names of both original decree-holders continued to be shown. The judgment-debtors objected to the maintainability of the execution on that ground and also asserted that an interest in the property had been transferred to Sanjay Kumar Verma.

The executing court directed on 04.01.2025 that the transferee be added to the array, and an amendment application correcting the array was allowed on 26.05.2025. The revision against that order was dismissed on 22.08.2026, prompting the petition under Article 227.

The petitioner contended that a proceeding instituted in the name of a dead person is a nullity which no amendment can cure, that the transfer left the decree-holders with no enforceable interest, and that the amendment travelled beyond the order of 04.01.2025 since the transferee had not then been impleaded.

Relying on Jagdish Dutt v. Dharam Pal, where the Supreme Court recognised that Order XXI Rule 15 enables a joint decree-holder to execute a decree in its entirety, the Court held that the death of one joint decree-holder does not extinguish the right of the other to seek execution. It held that at the highest, the continued presence of the deceased decree-holder's name was an incorrect description of the array requiring correction.

On the alleged transfer, the Court held that Order XXI Rule 16 read with Section 146 CPC governs how a transferee claiming through a decree-holder may seek execution.

Referring to Vaishno Devi Construction v. Union of India, where the Supreme Court held that the validity of an assignment is for the executing court to decide, it held that the nature and effect of the alleged transfer had to be worked out in the execution proceedings themselves.

“The mere assertion of a transfer cannot, by itself, retrospectively render an otherwise competent execution proceeding non-est.”

Holding that the correction of the array was procedural and did not amount to the institution of a fresh execution, the Court dismissed the petition and directed that the execution proceed in accordance with law. It clarified that no final opinion had been expressed on the validity, nature or legal effect of the alleged transfer, which the executing court remains at liberty to determine.