Assignee Of Interest In Decree Schedule Property Can Continue Execution U/S 146 CPC; No Prior Substitution Under Order XXI Rule 16 CPC Required: Kerala High Court
The Court allowed Srimad Samyamindra Thirtha Swamiji Of Kashi Math Samsthan to continue decade long-pending execution proceedings against Raghavendra Thirtha Swami.
Justice Easwaran S., Kerala High Court
The Kerala High Court has held that a person who succeeds to rights in the property forming the subject matter of a decree can continue execution proceedings before the executing court by invoking Section 146 CPC read with the Explanation to Order XXI Rule 16 CPC, without first obtaining substitution under Order XXI Rule 16 from the court that passed the decree.
The Bench opened the judgment by describing the case as arising from a dispute "within the sacrosanct relationship of a Guru and a Shishya" that had "traversed the spiritual realm and culminated in protracted litigation", allowing a petition filed by the successor of the late head of Sree Kashi Math Samsthan.
A Bench of Justice Easwaran S. observed, “Upon a conjoint reading of Order XXI Rule 16, its Explanation and Section 146 CPC, this Court is of the considered view that where there is merely a devolution or assignment of interest in the decree schedule property, and not an assignment of the decree itself, the Explanation to Order XXI Rule 16 is attracted. In such circumstances, the assignee is entitled to seek execution directly before the executing court by invoking Section 146 CPC, without first obtaining substitution under Order XXI Rule 16 before the court which passed the decree”.
Senior Advocate R. Lakshmi Narayan and Advocate R. Ranjanie appeared for the petitioner while Senior Advocate P.B. Krishnan and Advocate Harish R. Menon appeared for the respondent.
The litigation traces its origins to a suit instituted in 2000 by a disciple claiming to be the rightful Mathadhipathi of Sree Kashi Math Samsthan. The suit was dismissed, while a counterclaim filed by his Guru, Srimad Sudhindra Thirtha Swami, was decreed, permanently restraining the disciple from interfering in the Math's affairs and directing him to hand over its deities and other properties.
Execution proceedings became protracted after the judgment-debtor repeatedly challenged jurisdiction and resisted execution; earlier proceedings before the High Court had even described him as an "elusive Swamiji" for evading the execution process, eventually leading to a CBI investigation to trace him.
Following the original decree-holder's death in 2017, his nominated successor and legatee sought to be impleaded as an additional decree-holder in execution proceedings pending before the Ernakulam court. The executing court rejected the request, holding that he must first obtain substitution from the Tirupati court that had originally passed the decree.
Setting aside the executing court's order, the Court held that the Explanation to Order XXI Rule 16, introduced by the 1976 amendment, specifically preserves the operation of Section 146 CPC. The requirement of approaching the court that passed the decree, it held, applies only where the decree itself has been assigned; where merely the rights in the decree-schedule property have devolved, the successor may directly invoke Section 146 before the executing court.
Compelling such a successor to first seek substitution before the original court, Justice Easwaran held, would defeat the legislative purpose of the amendment, enacted to avoid multiplicity of proceedings and unnecessary procedural hurdles. The Court relied on the Supreme Court's rulings in 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 to hold that a successor acquiring rights in decree-schedule property may continue execution without a separate assignment of the decree.
Earlier Kerala Decisions Held Per Incuriam
The Court held that its own earlier decisions in Sankarambal v. Lalitha Ganesan 1978 KHC 51 and Mathai v. Joy 1986 KHC 319 could not govern the present controversy, since neither had considered the Explanation to Order XXI Rule 16 or its interplay with Section 146 CPC. Applying the Supreme Court's ruling in Sundeep Kumar Bafna v. State of Maharashtra (2014) 16 SCC 623 on decisions rendered in ignorance of binding precedent, the Court held that to the extent Sankarambal and Mathai conflicted with subsequent Supreme Court judgments, they no longer possessed binding precedential value, and consequently, no reference to a larger Bench was necessary.
Judgment-Debtor's Objections Rejected
The Court held that the judgment-debtor was attempting to reopen issues already concluded in earlier appellate proceedings, in an effort to delay execution of a decree that had remained unexecuted since 2011. It noted that the petitioner presently holds a declaratory decree recognising him as Mathadhipathi of the Kashi Math Samsthan, while a trust deed created by the respondent had separately been declared fraudulent and void by a Bengaluru civil court, a ruling currently under appeal, but operative until set aside. Holding that the pendency of that appeal did not justify stalling execution, the Court found the objections devoid of merit.
Allowing the Original Petition, the Court set aside the Ernakulam executing court's order refusing impleadment, and directed the court to implead the petitioner as an additional decree-holder, amend the execution petition accordingly, and proceed with execution "as expeditiously as possible".
Cause Title: Srimad Samyamindra Thirtha Swamiji v. Raghavendra Thirtha Swami (Neutral Citation: 2026:KER:58592)
Appearances:
Petitioner: S.B. Premachandra Prabhu, R. Lakshmi Narayan, (Senior Advocate), Ramanarayana Prabhu, R. Ranjanie and M. Ashok Kini, Advocates.
Respondent: P.B. Krishnan (Senior Advocate), Harish R. Menon and K.T. Shyamkumar, Advocates.