Judgment :- 1. Fourth defendant is the appellant. The decree holder and his assignee jointly filed an application for execution of the decree. The 4th defendant contended that the assignment was benami for the 5th defendant and therefore execution of the decree should not be allowed. A further ground of objection taken by him was that the assignment of the decree, as stated in the execution application itself, being by an oral transaction should not be recognised by the executing court. 2. Both the courts below found against the appellant in the contention that the assignment was benami for the 5th defendant. Nothing was made out at the hearing of this Second Appeal to show that the said finding was perverse or that it was unsupported by the evidence in the case. The deposition given in the matter by the assignee was read out in extenso by the learned counsel for the appellant. It only shows that the assignee has taken the assignment in order to help the 5th defendant who is a poor relation of his, the assignee himself being a wealthy man worth about Rs. 18 lakhs. The amount of the decree in this case is about Rs. 1700/- only. Where a decree for money is against several persons jointly, it is open to the decree-holder to execute the entire decree against any one of the judgment-debtors or his properties, leaving that judgment debtor to work out his right of contributions against the co-judgment-debtors by fresh suit or suits. In such cases, nothing stands in the way of a relation of a judgment-debtor taking an assignment of the decree in order to help him by averting the execution proceedings against the particular judgment-debtor and directing the same primarily against the other judgment-debtors in the case, so that the one in whom he is interested would not have to pay more than his share of the debt. Such an assignment of the decree cannot be dubbed as a benami transaction. It can only be real and genuine. The contention of the appellant that the transaction was benami has therefore been rightly repelled by both the courts below. 3. The learned counsel for the appellant contended that the assignment having been stated to be by an oral transaction before the date of the execution petition, the execution petition itself cannot be construed as an assignment of the decree. The contention of the appellant that the transaction was benami has therefore been rightly repelled by both the courts below. 3. The learned counsel for the appellant contended that the assignment having been stated to be by an oral transaction before the date of the execution petition, the execution petition itself cannot be construed as an assignment of the decree. This position appears to me to be correct. The recital in the joint application for execution is to the effect that "since the decree has been orally assigned to the assignee mentioned above ". This can in no way be construed as an assignment of the decree by the execution application itself as is held by the court below. It is evident that the assignment in this case was by a transaction independent of the execution of the application for execution and that transaction was an oral one. Under Order XXI, R.16 C.P.C, in order to enable the assignee to apply for execution of the decree, the transfer of the decree has to be in writing. That condition not being satisfied in this case, the assignee of the decree has no locus standi under Order XXI, R.16 C.P.C. to make an application for execution. 4. But, that does not conclude the matter. The non-availability of Order XXI, R.16 would not debar a person from claiming the benefit of S.146 of the Code of Civil Procedure. Under that section any person claiming under the decree-holder the benefits of a decree by any transaction which is valid in law, though that may not amount to an assignment of the decree in writing, is entitled to make an application for execution which the decree-holder himself could have made. S.146 reads thus: "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... any person, then the proceeding may be taken or the application may be made by any person claiming under him". Two questions arise for consideration under this section, namely, [1] Is the applicant a person claiming under the decree-holder? and [2] Is his right to execute the decree barred by any provision in the Civil Procedure Code or any other law in force? 5. Two questions arise for consideration under this section, namely, [1] Is the applicant a person claiming under the decree-holder? and [2] Is his right to execute the decree barred by any provision in the Civil Procedure Code or any other law in force? 5. As per the law of transfer prevalent in the Travancore area before the introduction of the Transfer of Property Act there in 1952, oral assignments even of immovable property was held to be valid. It is also conceded by the learned counsel for the appellant that the oral assignment of the decree referred to in the execution petition in this case, apart from the provisions of Order XXI, R.16 would be valid under the then law. 6. He however contended that S.146, C.P.C. would operate only if there is no other provision on the matter in the Code of Civil Procedure. Order XXI, R.16 being a particular provision on the matter in the Code, and that having disentitled an assignee, who has no assignment in writing in his favour, from executing the decree, S.146 cannot avail such assignee. The identical contention was raised before the Supreme Court in Jugalkishore Sara v. M/s. Maw Cotton Co Ltd. (A.I.R.1955 S.C. 376) S.R.Das, J., observed: "There is nothing in 0.21, R.16 which, expressly or by necessary implication, precludes a person, who claims to be entitled to the benefit of a decree under the decree-holder but does not answer the description of being the transferee of that decree by assignment in writing or by operation of law, from making an application which the person from whom he claims could have made. It is said: what, then, is meant by the words "save as otherwise provided by this Code [in S.146]"? The answer is that those words are not meaningless but have effect in some cases. Take, by way of an illustration, the second proviso to 0.21, R.16 which provides that where a decree for payment of money against two or more persons has been transferred to one of them it shall not be executed against the others. This is a provision which forbids one of the judgment-debtors to whom alone the decree for payment of money has been transferred from making an application for execution and, therefore, he cannot apply under S.146 as a person claiming under the decree holder. This is a provision which forbids one of the judgment-debtors to whom alone the decree for payment of money has been transferred from making an application for execution and, therefore, he cannot apply under S.146 as a person claiming under the decree holder. As the respondent company do not fall within 0.21, R.16, because the document did not cover the decree to be passed in future in the then pending suit, that rule cannot be a bar to the respondent company making an application for execution under S.146 if they satisfy the other requirement of that section, namely, that they can be said to be claiming under the decree-holder." Bhagwati, J., delivering a separate judgment in that case, also observed: "If a person does not fall within the four corners of the provision of 0.21, R.16, Civil P. C. that provision certainly does not apply to him, and the words "save as otherwise provided in this Code" contained in S.146 would not come in the way of his availing himself of S.146, because 0.21, R.16 cannot then be construed as an "otherwise provision' contained in the Code. I am therefore of the opinion that if the respondents could not avail themselves of 0.21, R.16, Civil P. C. they could certainly under the circumstances of the present case take the execution proceedings and make the application for execution of the decree under S.146, Civil P. C." Since I have found that the oral assignment in favour of the assignee was a valid transaction, even though the assignee will not come within the purview of Order XXI, R.16, C.P.C., his competency to make an application to execute the decree under S.146, C.P.C. cannot be denied. 7. In the circumstances, the Second Appeal fails, and it is dismissed. But as both the courts below proceeded on the ground that the execution petition itself should be treated as an assignment in writing of the decree, which is incorrect on the facts of this case, I do not make the appellant liable for the costs of this appeal. 8. The learned advocate for the appellant seeks leave to appeal against this judgment. Leave is granted. Dismissed. Leave granted.