Justice Easwaran S. delivered the judgment in an Original Petition arising from a litigation involving the Kashi Math Samsthan.

The dispute dates back to 2000, when the respondent in the present suit filed for a declaration against his Guru, Srimad Sudhindra Thirtha Swami, for a declaration that he is the present Mathadhipati (21s pontiff) of the Math and for a permanent injunction restraining the defendants from in any way interfering with the affairs of the Math. A counterclaim was lodged, which has led to the nomination of another Shishya by the first defendant guru and the issuance of the proclamation by which the petitioner in the present original petition was nominated as the successor in interest of the Srimad Sudhindra Thirtha Swami.

The suit was dismissed and the counterclaim was decreed and granted a permanent injunction restraining the plaintiff from interfering in the affairs of the Samsthan and its administration. It was also directed to the plaintiff to hand over all the deities and other articles enclosed to the decree in his possession belonging to Shri Samsthan to the counter claimant.

Subsequently, the respondent defended the execution petition before the additional District Court-IV, Tirupati, for executing the decree in the counterclaim and raised a question regarding the territorial jurisdiction of the Tirupati Court to entertain the execution petition, since the respondent was no longer residing within the jurisdiction of the Tirupati Court. The application in the counterclaim was transferred to Ernakulam Court on the request of the decree holder in the counterclaim.

The executability of the decree was questioned on multiple occasions, and this was rejected by the concerned Courts. The decree holder filed an application seeking assistance of the Director General of Police to arrest and produce the judgment debtor in the executing court to facilitate his detention in civil prison to locate the items of the decree. This was refused by the executing court but later allowed by the High Court. The investigation to trace out the missing judgment debtor was handed over to the Central Bureau of Investigation in 2013.

Meantime, Sudhindra Thirtha Swaminji attained Samadhi in 2017, based on a registered will, the petitioner in the present original petition was to succeed Sudhindra Thirtha Swamiji as the Madathipathi of Kashi Math Samsthan.

The petitioner filed an application under Section 146 read with Section 151 of the Code of Civil procedure to get him substituted as the decree holder in the execution proceedings. The Additional District Court-I, Ernakulam opined that the remedy of the petition is to move the court which passed the decree and obtain permission from the Additional District Court-IV, Tirupati to substitute himself as the decree holder and thereafter proceed with the execution proceedings. Hence, the present petition was filed.

The petitioner submitted that in light of the Explanation added to Order XXI Rule-16 of the Code of Civil Procedure an application under Section 146 of the Code of Civil Procedure is maintainable and it is unnecessary for the petitioner to approach the court which passed the decree. The respondent, on the other hand submitted that the requirement of law that the petitioner must approach the court which passed the decree cannot be bypassed.

The Court examined the Order XXI Rule 16 of CPC which deals with the execution by a transferee of a decree. It further examined Section 146 of CPC which deals with proceedings by or against representatives.

The Court noted that the Explanation to Order XXI Rule 16 of CPC was inserted by a 1976 amendment pursuant to a recommendation by the Law Commission to make it clear that the order does not affect the provisions of Section 146, and a transferee of rights can obtain execution of the decree without a separate assignment of the decree.

The Court thus noted that Order XXI Rule 16 governs only cases where the decree itself is assigned. However, where only the rights in the decree schedule property devolve upon another person, the Explanation to Rule 16 expressly preserves Section 146 CPC, enabling the successor to continue proceedings without obtaining a separate assignment of the decree or prior substitution before the original court.

The Court observed that insisting upon compliance with Order XXI Rule 16 even in such cases would render the statutory Explanation wholly otiose and defeat Parliament's objective behind the 1976 amendment.

“The legislative intent is manifest—to obviate the necessity of obtaining a separate assignment of the decree or seeking substitution before the court which passed it. To insist upon compliance with Order XXI Rule 16 notwithstanding the Explanation would render the amendment wholly otiose and defeat the very object sought to be achieved.” Court observed.

The respondents had placed reliance on Sankarambal v Lalitha Ganesan [1978 KHC 51] and Mathai v Joy [1986 KHC 319] which had answered on the question of applicability of Order XXI Rule 16 on the death of a decree holder.

The Court held that those decisions did not examine either the Explanation to Order XXI Rule 16 or the scope of Section 146 CPC after the 1976 amendment. Consequently, they could not be treated as binding precedents on the controversy before it.

The Court further held that subsequent Supreme Court authorities including Zila Singh v. Hazari [(1979) 3 SCC 265], Raj Kumar v. Sardari Lal [(2004) 2 SCC 601], and Vaishno Devi Construction v. Union of India [(2022) 2 SCC 290] had authoritatively settled the law by recognising the liberal scope of Section 146 CPC and the purpose behind the Explanation to Order XXI Rule 16.

The Court held that where rights devolve in the decree schedule property, the successor can directly seek execution before the executing court without first obtaining substitution from the court that passed the decree. The Court also rejected the contention that Section 42(4)(a) CPC barred such an application, holding that the provision applies only where the decree itself has been transferred.

“The contention that Section 42(4)(a) CPC bars the executing court from entertaining such an application is equally misconceived. The embargo contained therein applies only where execution is sought by a transferee of the decree. It has no application where the transferee merely acquires rights in the property which constitutes the subject matter of the decree. Consequently, a person who acquires such an interest is entitled to invoke Section 146 CPC read with the Explanation to Order XXI Rule 16 and is not required to seek substitution before the court which passed the decree. The contention to the contrary is rejected.” Court held.

The Court also rejected the judgment debtor's attempt to oppose substitution by arguing that the decree was personal in nature.

Noting the history of prolonged litigation and repeated challenges to execution, the Court found that the objections were intended only to delay enforcement of a decree that had remained unexecuted for years. Accepting such objections, the Court observed, would frustrate the legislative object behind the 1976 amendment and encourage abuse of execution proceedings through procedural technicalities.

The High Court set aside the order of the First Additional District Court, Ernakulam, directed that the petitioner be impleaded as an additional decree holder in the pending execution proceedings, and ordered the executing court to proceed with execution expeditiously.

Case Title: Srimad Samyamindra Thirtha Swamiji v Raghavendra Thirtha Swami

Case No: OP(C) 1737/ 2019

Citation: 2026 LiveLaw (Ker) 446

Counsel for Petitioner: R. Lakshmi Narayan (Sr.), S.B. Premachandra Prabhu, Ramanarayana Prabhu, R. Ranjanie, M. Ashok Kini

Counsel for Respondent: P.B. Krishnan (Sr.), Harish R. Menon, K.T. Shyamkumar

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