K.S. Venkataraman, J.
1. This appeal arises out of proceedings in the execution of the decree in O.S. No. 431 of 1962 on the file of the District Munsif, Coimbatore. The suit was instituted by one Rangammal, A Hindu widow, against her husband's brother's son, Ramaswami Naicker, the appellant herein, to recover possession of 3.36 acres of land in a village in Coimbatore. The suit was compromised on 28th June, 1963, according to which the plaintiff was entitled to a specified extent of 1 acre 12 cents and the defendant to the remainder. Rangammal, however died the very next day after the decree. Earlier, on 17th October, 1962, she had executed a registered will in favour of her brother, Venkataswami Naidu, bequeathing the subject-matter of the suit, namely 3.36 acres, and another house, not concerned in the suit. The will, of course, would take effect only on her death. Founding on the will, the legatee Venkataswami Naidu, filed E.P. No. 860 of 1963 out of which this appeal arises, to execute the decree. In column i, he described himself as legal representative of the deceased Rangammal, the decree-holder. In column 11, he prayed that he might be recognised as the heir (legal representative) of the decree holder Rangammal, and possession might be delivered to him under Order 21, Rule 35, Civil Procedure Code.
2. The judgment debtor, Rangaswami Naicker, resisted the petition, on the grounds (1) that the will was not genuine, (2) that its genuineness had to be established in proceedings other than in execution of O.S. No. 431 of 1962 and (3) that but for the will he would be the heir-at-law of Rangammal under the Hindu Law.
3. The question whether the genuineness of the will could be gone into in the execution proceedings was tried as a preliminary point. The learned District Munsif held that it could be gone into in the execution proceeding itself in view of Sections 47 and 146, Civil Procedure Code. The view was upheld on appeal by the learned District Judge, hence this further appeal by Rangaswami Naicker. The contention of his learned Counsel is that Venkataswami Naidu should be referred to a separate suit to establish the will and only thereafter he could be allowed to execute the decree. No authority however is cited for this proposition and this proposition is opposed to the statutory provisions like Sections 47 and 146, Civil Procedure Code. When Venkataswami Naidu claims to be the legal representative of the decree holder Rangammal and further claims to be entitled to execute the decree in that capacity, the question has necessarily to be tried under Section 47 by executing Court. Section 47 (2), no doubt, says that the executing Court may treat a proceeding under that section as a suit, but where the question is one primarily relating to execution, there is no need to convert it into a suit. Apart from this there is no provision of law which ousts the jurisdiction of the executing Court under Section 47, Civil Procedure Code. Thus Section 213 of the Indian Succession Act will not apply so as to oust the jurisdiction of the executing Court, because it clearly enacts that so far as a will made by a Hindu is concerned, it will only apply where the will is of the classes specified in Clauses (a) and (b) of Section 57, and if we turn to Clauses (a) and (b) of Section 57, they refer to a will executed within the City of Madras or relating to property situated in Madras City. But here, the will was executed outside the City of Madras and the properties also are situated in Coimbatore District. Hence Section 213 will not apply. See also the decision in Behan Lal v. Karam Chand .
4. It is thus clear that it is the executing Court which has to determine whether Venkataswami Naidu is the legal representative under Section 47. A question may arise about the exact provision under which the Court may proceed. The possible provisions are Order 21, Rule 16 and Section 146, Civil Procedure Code, Order 21, Rule 16, Civil Procedure Code will not apply because the will does not assign the decree; in fact, it does not refer to the suit at all. Hence there has not been any assignment in writing or by operation of law under Order 21, Rule 16, Civil Procedure Code, according to the criterion laid down by their Lordships of the Supreme Court in Jugal Kishore Saraf v. Raw Cotton Ltd. : 1SCR1369 , But, Venkataswami Naidu can maintain the petition under Section 146, Civil Procedure Code, as a person claiming under Rangammal. This is clear from the above decision itself and also the decision in The Andhra Bank Ltd. v. R. Srinivasan : 3SCR391 , where their Lordships held that even a partial legatee under a will can be legal representative under Section 2 (11), Civil Procedure Code. It has been held in a number of cases following Jugal Kishore Saraf v. Raw Cotton Ltd. : 1SCR1369 , that where a transferee of the subject-matter of the suit is not a transferee of the decree and therefore cannot apply under Order 21, Rule 16, Civil Procedure Code, he can nevertheless apply under Section 146, Civil Procedure Code, to execute the decree, See Saila Bala Dassi v. Nirmala Sundari Dassi : (1958)2MLJ99 , Chinnan Kesavan v. Gouri Amma I.L.R. : AIR1959Ker180 , Mam Davasia v. Varkey Scaria (1960) Ker.L.T. 1077, Ramnath v. Anardei Devi : AIR1964Pat311 Satyanarayana v. Arun Malk : AIR1965AP81 , and Ponniah Pillai v. T. Natarajan : AIR1968Mad190 , There is only one decision in which a dissenting note has been struck and that is by Jagdisan, J., Sampath Mudaliar v. Sakunthala Ammal (1964) 2 M.L.J. 563 : I.L.R. (1964) 2 Mad. 363 , where the learned Judge held that once a decree is passed, unless there is an assignment in writing of the decree to satisfy Order 21, Rule 16, Civil Procedure Code, Section 146 cannot be invoked and that Section 146 would be controlled by Order 21, Rule 16 Civil Procedure Code. For the reasons discussed in the decisions cited above, I respectfully dissent from the view taken by Jagadisan, J., and agree with the view of Kailasam, J., in Ponniah Pillai v. Natarajan : AIR1968Mad190 , that as pointed out by their Lordships of the Supreme Court, Section 146 is very wide in its terms and would permit a transferee like the respondent herein to maintain an execution petition, even though the decree as such has riot been transferred to him under Order 21, Rule 16, Civil Procedure Code. Their Lordships have emphasised that Section 146, Civil Procedure Code, will apply so long as there is no prohibition to the contrary. There is no such prohibition here. It may also be pointed out that Das, J., points out at pages 1405 and 1406 in Jagul Kishore Saraf v. Raw Cotton Ltd (1955) S.C.J. 371 : (1955) 1 M.L.J. 220 : (1955) 1 A.W.R. 220: (1955) 1 S.C.R. 1969., that in such a case, it is the duty of the executing Court alone under Section 47 to determine the question whether the transferee person seeking to execute the decree could be said to claim under the decree holder under Section 146.
5. It is quite clear therefore that the executing Court is the proper Court to determine the question whether the will is genuine and the property in question was bequeathed to the claimant Venkataswami Naidu thereunder. The appeal is therefore dismissed, but without costs. No leave.