JUDGMENT S.U. Khan, J.
1. Petitioner is a tenant against whom previous landlord owner Sri Ramji Lal filed a suit for ejectment and recovery of arrears of rent being S. C. C. Suit No. 66 of 1975 which was decreed by JSCC, Khurja, district Bulandshahr on 10.9.1977. Thereafter on 12.9.1979 Ramji Lal filed Execution Case No. 100 of 1979 for execution of the decree before Munsif Khurja after obtaining transfer certificate from JSCC Khurja. After 2 days of filing execution application, i.e., on 14.9.1979 Ramji Lal sold the property in dispute through registered sale deed to Vijay Kumar respondent No. 3.
2. The tenant petitioner asserted that on 18.11.1979 Ramji Lal entered into compromise with him through which rent was enhanced from Rs. 40 per month to Rs. 60 per month and the tenancy of the tenant petitioner was continued, however, the said compromise was not filed in the Court as Ramji Lal resized therefrom. The petitioner filed objections under Section 47 and Order XXIII, Rule 3, C.P.C. (Misc. Case No. 124 of 1979) In the execution proceedings praying therein that compromise be recorded and in view of the compromise execution be struck off. Ramji Lal died on 31.5.1980. Petitioner filed substitution application for bringing on record Smt. Vidhyawati and Smt. Shanti Devi respondent Nos. 4 and 5 who are the daughters of Ramji Lal in his objections under Section 47, C.P.C. (Misc. Case No. 124 of 1979). The substitution application was allowed. However, the execution application (Execution Case No. 100 of 1979) was dismissed for non-prosecution/non-substitution of heirs of Ramji Lal as none applied for substitution. The file of execution case was consigned to record on 2.12.1980. On 3.10.1981 respondent No. 3 who happens to be the son of Shanti Devi filed application for impleadment on the basis of the sale deed. He also filed another application, which was registered as Misc. Case No. 98/81 praying for recalling of the order of consignment to the record of the execution case. Both the applications were allowed by Executing Court on 19.4.1982. The execution case was revived and Vijay Kumar respondent No. 3 was substituted at the place of Ramji Lal. Against the said order an appeal was filed by the petitioner being Misc. Civil Appeal No. 81/82. Later on the appeal was converted into revision on the application of the petitioner inspite of objection of respondent No. 3. The revisional court held that respondent No. 3 was rightly impleaded in Misc. Case No. 124 of 1979 as opposite party. Revisional court also held that respondent No. 3 had rightly been substituted in the execution case at the place of Ramji Lal.
3. It has been held by Supreme Court in J. Sarraf v. Raw Cotton Corporation, AIR 1955 SC 376 and Saila Bala Dassi v. Smt. Nirmala Sundari Dassi and Ors., AIR 1958 SC 394 that apart from Order XXI, Rule 16, C.P.C transferee of property, which was subject-matter of the decree, can initiate execution proceedings even without transfer of decree by virtue of Section 146, C.P.C. The Supreme Court held that Order XXI, Rule 16, C.P.C. is only one of the provisions and not the only provision permitting execution on behalf of a person other than decree holder:
"Section 146.-Proceedings by or against representatives.-Save as 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.
Order XXI. Rule 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 law, the transferee may apply for execution of the decree to the Court which passed it and the decree may be executed in the 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 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.
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."
4. The main argument of the learned counsel for the petitioner is that the respondent No. 3 might be entitled to file fresh substitution application on the basis of sale deed of the property in dispute, but he was not authorized to apply for restoration of execution case and to get himself substituted therein which had been filed by the previous owner/decree-holder before execution of the sale deed.
5. In my opinion combined reading of Section 146 and Order XXII. Rule 10, C.P.C. make it abundantly dear that transferee of the property during the pendency of execution proceedings can be substituted/impleaded in execution proceedings at the place of decree-holder :
'Order XXII, Rule 10. Procedure in case of assignment before final order in suit.-(1) In other cases of an Assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of Sub-rule (1).
6. It has been held in the following authorities that a legal representative can file an application to set aside an ex parts decree before he is actually brought on record :
(1) AIR 1954 Mys 32.
(2) AIR 1947 Mad 34.
(3) AIR 1927 Bom 123.
7. The same principle will apply in respect of an application to set aside order of dismissal in default.
8. It has been held in (1989) 1 Bom CR 87 (94, 95) that if interest in suit property is assigned pending suit and suit abates thereafter on the ground that heirs of the plaintiff did not apply to come on record in time then assignee can apply to set aside abatement, under Section 146 read with Order XXII. Rule 10. C.P.C. after making out sufficient cause to condone the delay [vide AIR Manual Vth Edition, Vol. V, Note-8 under Section 146, C.P.C. 233).
9. In 1958 Supreme Court authority of Saila Bala Dassi (supra) it has been held that Section 146, C.P.C. "being a beneficent provision should be construed liberally and so as to advance Justice and not in a restricted or technical sense." {Para 8). In the same para it has also been held :
"The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims."
10. In view of the above. it is quite clear that applications filed by Vijai Kumar Sharma, respondent No. 3 for restoration of execution case and for his substitution/impleadment at the place of Ramji Lal were quite maintainable.
11. Accordingly, there is no merit in the writ petition and it is dismissed.
12. The petitioner has remained in possession for about 21 years by virtue of stay order granted in this writ petition inspite of a decree for eviction passed against him hence he is liable to pay property damages for the same. The property in dispute is a shop situate in Bulandshahr. The rent was only Rs. 40 per month. At present rent for a shop in a city can in no case be less than Rs. 1,000 per month. Accordingly, it is directed that petitioner shall be liable to pay the rent/damages for use and occupation with effect from 1.1.1984, till vacation of the shop at the rate of Rs. 350 per month. Execution application already pending may suitably be amended for incorporating the relief for recovery of the decreetal amount at the rate of Rs. 350 per month.