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Kirtilal Jivabhai Vs. Chunilal Manilal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 5 of 1944 and Suit No. 1970 of 1923
Judge
Reported inAIR1946Bom27; (1945)47BOMLR728
AppellantKirtilal Jivabhai
RespondentChunilal Manilal
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), order xxi, rules 16, 15 and 10 - decree-execution-execution by heir of decree-holder-procedure.;under the civil procedure code, 1908, it is only a decree-holder who can ordinarily apply for execution of the decree. if there are more decree-holders than one, it is competent to one of the joint decree-holders to apply for execution, under order xxi, rule 15. if the decree is transferred either by assignment in writing or by operation of law, the transferee also can apply for execution under order xxi, rule 16, of the code.;to constitute a revivor, of a decree there must be a determination by a court that the decree is still capable of execution and the decree-holder is entitled to enforce it. such a revivor can be effected by an order for execution!,..........there must be a, determination by a court that the decree is still capable of execution and the decree-holder is entitled to enforce it. such a revivor can be effected by an order for execution, provided the order made is a valid order. as we have pointed out, the application for execution on which the order of attachment was made by the ahmedabad court on august 31, 1931, was made by kantilal on february 10, 1931. the most important question we have to consider is : in what capacity did kantilal make this application? the scheme of the civil procedure code is that it is only a decree-holder who can ordinarily apply for execution of the decree. if there are more than one decree-holders, then under order xxi, rule 15, it is competent to one of the joint decree-holders to apply for.....
Judgment:

Chagla, J.

1. This is an appeal from a judgment of Mr. Justice Kania, and the question that arises for determination is1 whether a decree is capable of execution or is barred by limitation. It was an ex parte decree that was passed on November 13, 1923, in favour of Jivabhai Maganlal, the father of the appellant, against the firm of Vadilal Manilal. On January 4, 1926, Jivabhai applied for execution of the decree to this Court and a warrant was issued for the arrest of Vadilal Manilal and Chunilal Manilal, respondent No. 1 herein, partners of the defendant firm, the notices under Order XXI, Rule 22, and under Order XXI, Rule 37, Civil Procedure Code, 1908, being dispensed with. In June, 1928, Jivabhai died leaving behind him two sons, Kantilal (respondent No. 2), Kirtilal (the appellant), a widow and a brother's widow. In August, 1930, the decree was transferred to Ahmedabad for execution. On September 4, 1930, a certificate was issued by; the Prothonotary and Senior Master that further execution had been stayed in this Court. On February 10, 1931, Kantilal applied for execution in the Ahmedabad Court. On March 2, 1931, notice was issued by that Court under Order XXI, Rule 22. The service of this notice was effected by substituted service, and on August 31, 1931, the Court made an order for attachment of properties belonging to the judgment-debtors. On September 30, 1931, notice was issued under Order XXI, Rule 66, for settling draft proclamation of sale. On October 15, 1931, respondent No. 1 appeared and raised various objections. On March 12, 1932, Kantilal applied to withdraw his application for execution with liberty to file a fresh one. This application of Kantilal was granted and he was made to pay the costs of the application for execution.

2. Kantilal filed a suit for partition in this Court toeing Suit No. 1177 of 1940, and in that suit a consent decree was passed on September 23, 1940. By that decree the joint family properties were partitioned, and it is the appellant's case that the judgment-debt against the firm of Vadilal Manilal came to his share. The appellant applied for execution to the Ahmedabad Court on July 25, 1941, and that Court issued notice under Order XXI, Rule 22. On August 30, 1943, the appellant got the stay order for the execution of the decree in this Court removed; and on August 31, 1943, he presented an application under Order XXI, Rule 16, which Mr. Justice Kania dismissed holding that the decree was time-barred and not capable of execution.

3. The decree having been passed on November 13, 1923, was revived by the order made on January 4, 1926, for the issue of a warrant, and prima facie the decree would be barred on August 31, 1943, when an application for execution was made under Order XXI, Rule 16, unless in the intervening period the decree had again been revived. The appellant relies on the order made by the Ahmedabad Court on August 31, 1931, as a revivor of the decree. To constitute a revivor of a decree there must be a, determination by a Court that the decree is still capable of execution and the decree-holder is entitled to enforce it. Such a revivor can be effected by an order for execution, provided the order made is a valid order. As we have pointed out, the application for execution on which the order of attachment was made by the Ahmedabad Court on August 31, 1931, was made by Kantilal on February 10, 1931. The most important question we have to consider is : in what capacity did Kantilal make this application? The scheme of the Civil Procedure Code is that it is only a decree-holder who can ordinarily apply for execution of the decree. If there are more than one decree-holders, then under Order XXI, Rule 15, it is competent to one of the joint decree-holders to apply for execution. If the decree is transferred either by assignment in writing or by operation of law, the transferee can also apply for execution under Order XXI, Rule 16, of the Civil Procedure Code.

4. It is contended, in the first place, by Mr. Banaji on behalf of the appellant that the decree dated November 13, 1923, was passed in favour of Jivabhai as the karta of a joint Hindu family and that Kantilal being a coparcener in that family was a joint decree-holder and as such he was entitled to apply for execution under Order XXI, Rule 15. Now, in the first place, there is nothing on the face of the record to show that Jivabhai was suing the firm of Vadilal Manilal in his capacity as the karta in respect of a joint family debt. Jivabhai is described in the title of the plaint as Jain Hindu inhabitant, a commission agent and shroff carrying on business as such at Pydhonie outside the Fort. But there is nothing to suggest in the plaint that the business he was carrying on was an ancestral business. In the second place, in our opinion a decree-holder entitled to execute the decree as such must appear to be a decree-holder on the face of the decree. Whether the decree-holder applies under Order XXI, Rule 10, or under Order XXI, Rule 15, the executing Court can only execute the decree provided his name appears as a decree-holder on the face of the decree itself. The executing Court cannot look to anything outside or beyond the decree in order to satisfy itself that the person who is applying for execution is the decree-holder. The very definition of 'decree-holder' contained in Section 2, Sub-clause (3), of the Code, makes this clear beyond any doubt.

5. Reliance was placed on Madhav Prabhakar v. Balaji Govind I.L.R (1926) Bom. L.R. 75. In that case a decree on a mortgage was passed in favour of one Vishnu Vishwanath Oke. He died on April 8, 1919, and in 1920 Vishnu's brother Balvant applied for execution. The darkhast was sent to the Collector for execution on August 20, 1920. On April 27, 1922, the Subordinate Judge held that it was not competent to the applicant Balvant to proceed with the execution as other persons interested with him in the decree as coparceners after the death of Vishnu were not joined. The proceedings were, therefore, called back from the Collector on May 5, 1922. On October 23, 1923, another application for execution was filed to which all the coparceners were parties; and the question arose whether the time occupied before the Collector from August 20, 1920, to May 5, 1922, in execution of the previous darkhast could be excluded under para 11, Sub-para (3), of Schedule III, of the Civil Procedure Code. The learned Subordinate Judge held that it could not be excluded. From this decision there was an appeal to the High Court before Mr. Justice Shah and Mr. Justice Fawcett. Mr. Justice Shah, in delivering the judgment of the Court, held that the time could be excluded; he then went on to hold that the first darkhast was properly presented by one of the coparceners under Order XXI, Rule 15. To the extent that Mr. Justice Shah held that Balvant could present the application as one of the assignees by operation of law on the death of Vishnu under Order XXI, Rule 15, read with Order XXI, Rule 16, that decision, with respect, is perfectly correct and is consistent with the recent decision of our Court that when a decree is assigned to two persons jointly, any one of the co-assignees can validly present an application for execution of the decree under Order XXI, Rule 15, of the Code see Shankar Hari v. Damodar Vyankaji (1944) 47 Bom. L.R. 104. But if the decision of Mr. Justice Shah is sought to be read as meaning that a coparcener of the decree-holder can apply for an execution of the decree under Order XXI, Rule 15, as a decree-holder, with great respect to the learned Judge we are unable to agree with that view. A coparcener in whose favour a decree is not passed can never be a decree-holder. He may become a transferee of the decree by operation of law; and if there are other coparceners in whose favour also the decree becomes transferred, then he may apply as one of the assignees under Order XXI, Rule 16, read with Order XXI, Rule 15, of the Code.' The same view of the law has been taken by Mr. Justice Burn and Mr. Justice Stodart in Narayanan v. Panchanathan [1940] Mad. 79; and they have expressly dissented from the contrary view taken in Ramsewakprasad v. Saran Singh A.I.R [1937] Pat. 607.

6. Alternatively it has been contended that the application by Kantilal for execution to the Ahmedabad Court was under Order XXI, Rule 16. It is urged that he was applying as one of the surviving coparceners of Jivabhai and the order made for attachment was in favour of one of the transferees of the decree. Order XXI, Rule 16, contemplates two cases of a transfer of a decree-one by assignment in writing and the other by operation of law. If the transfer is by assignment in writing, then it is obligatory upon the Court to give a notice of the application to the transferor and the judgment-debtor and the decree cannot be executed until the Court has heard their objections (if any) to its execution. The application has got to be made to the Court which passed the decree and the application must be an application for execution. No separate application need be made under Order XXI, Rule 16. All that the rule requires is that the transferee must apply for execution to the Court which passed the decree. Any doubt on this point has been set at rest by the recent decision of the Privy Council in Bhavani Shankar Joshi v. Gordhandas Jamnadas . As also pointed out by Sir John Beaumont, Chief Justice, in Krishna Govind v. Moolchand Keshavchand : (1941)43BOMLR751 two applications are not necessary, one under Order XXI, Rule 16, and the other under Order XXI Rule 11, although two applications may be necessary and may be desirable where the Court that passed the decree is not executing the decree and the decree has been transferred to another Court for execution. In this case the application for execution was made to the Ahmedabad Court which was not the Court that passed the decree, and to that extent the provisions of Order XXI, Rule 16, were not complied with. But the Privy Council in Jang Bahadur v. Bank of Upper India, Ltd. (1928) L.R. 55 IndAp 227 : 30 Bom. L.R. 1373, has held in construing the analogous provisions of Section 50 of the Civil Procedure Code that the application to the executing Court and not the Court which passed the decree is a matter of procedure and not of jurisdiction and that exclusive jurisdiction was not conferred on the Court which passed the decree but merely a rule of procedure was laid down as to which of the two Courts should hear the application for execution; and the Calcutta High Court in Shailendranath Ghosh v. Surendranath De I.L.R (1929) Cal. 1137 has applied the principle underlying the decision of the Privy Council to the provisions of Order XXI, Rule 16. Therefore it may be that the application by Kantilal to the wrong Court for execution under Order XXI, Rule 16, might not have been fatal to the validity of the order made by the Ahmedabad Court.

7. But the more serious difficulty in the way of the appellant which has got to be considered is whether any application under Order XXI, Rule 16, was made at all by Kantilal to the Ahmedabad Court. In the application for execution Kantilal has described himself as the proprietor of the firm of Jivabhai Maganlal, and he has affirmed the application as the plaintiff. In the notice issued under Order XXI, Rule 22, also Kantilal is described as the plaintiff, and the notice calls upon the defendant to show cause why an order for execution should not be made in favour of Kantilal in whose favour the decree was passed. Throughout the record of these execution proceedings in the Ahmedabad Court there is no suggestion by Kantilal that he was applying for execution as a transferee and no order has been passed by the Ahmedabad Court recognizing the status of Kantilal as a transferee.

8. It is true that Order XXI, Rule 16, does not require that on an application for execution under that rule the Court should pass an order declaring that the applicant is the transferee of the decree. But in our opinion it is desirable that ordinarily such an order should be made on an application under Order XXI, Rule 16. We have ascertained that the practice on the Original Side has always been for the Judge in chambers to pass such an order.

9. In Kacharabhai v. Kacharabhai : (1931)33BOMLR818 Mr. Justice Madgavkar and Mr. Justice Murphy held that an application to execute a decree filed by the decree-holder can, on his death, be continued by his son and heir, provided the heir first obtains an order of the Court under Order XXI, Rule 16; and in Brijmohandas Damodardas v. Sadashiv Laxman : AIR1940Bom5 Mr. Justice Lokur also held that when a decree is transferred to another Court and the decree-holder dies before starting execution proceedings in that Court, his legal representatives cannot institute execution proceedings in that Court until they obtain an order under Order XXI, Rule 16, from the Court which passed the decree recognizing them as the legal representatives of the deceased decree-holder and have that order remitted to the Court to which the decree is transferred for execution under Order XXI, Rule 6; and the Privy Council also in the case to which we have referred Jang Bahadur v. Bank of Upper India (1928) L.R. 55 IndAp 227 : 30 Bom. L.R. 1373 seems also to have taken the view that an order was necessary under the analogous provisions of Section 50, because it appears from the judgment of their Lordships at p. 233 that they took the view that before execution could proceed against the legal representative of the deceased judgment-debtor the decree-holder must get an order for substitution from the Court which passed the decree. But even without the passing of a formal order there must be a recognition by the Court that the person who has applied for the execution of the decree is a transferee within the meaning of Order XXI, Rule 16. But for such recognition the person who applies for execution would be a stranger to the decree and would not be entitled to maintain the application. In the case before us on the face of the decree Kantilal was a stranger to it. He never made a claim to be a transferee of the decree and we find no recognition by the Ahmedabad Court that he was a transferee either by a formal order or by anything appearing on the record which would go to show that the Ahmedabad Court had judicially determined the status of Kantilal. Under the circumstances we must hold that the application for execution made by Kantilal to the Ahmedabad Court was by a stranger to the decree who had no right to make the application and that the order made on that application was not a valid order which could revive the decree dated November 13, 1923.

10. A further point was urged by Sir Jamshedji Kanga that inasmuch as Kantilal applied for withdrawal of the execution proceedings and the application was granted, the order made on that application must also go along with the application. This point was not urged in the Court below. Mr. Banaji points out that there can be no withdrawal of execution proceedings because Order XXIII, Rule 1, does not apply to proceedings in execution and the effect of granting the application of Kantilal for withdrawal of his application was tantamount to the dismissal of the application; and although the application might ultimately be dismissed, if the interim order made on August 31, 1931, was a good and valid order, notwithstanding the ultimate dismissal of the application that order could act as a revivor of the decree. We have merely noted the rival contentions; but we do not think it necessary to express any opinion in view of our decision that Kantilal was not entitled to maintain this application for execution.

11. We might also point out that even now there is not on the record any clear and convincing evidence that the judgment debt was a joint family asset because even in the consent decree which was passed on September 23, 1940, and to which we have already referred, the appellant got as his share all the moveable and immoveable properties and all the outstandings, assets, goodwill and account books of all the businesses of the joint family or of the estate of Jivabhai Maganlal which seems to imply that Jivabhai also left behind him some self-acquired properties, and there is no specific declaration in the decree that this judgment-debt was a joint family asset; and when the appellant applied to this Court under Order XXI, Rule 16, on September 18, 1943, he claimed to be the assignee from Kantilal whom he described as the heir and legal representative of the plaintiff. If the judgment-debt was the self-acquired property of Jivabhai, then Kantilal could not have applied to execute the decree as the heir and legal representative of his father without obtaining representation to his estate in view of the provisions of Section 214 of the Indian Succession Act, 1925. He could only have maintained the application if the judgment-debt was a joint family asset and he became entitled to it along with the other coparceners by survivorship. All these questions would have been considered if Kantilal had applied for execution as a transferee and if the Ahmedabad Court had applied its mind to that question. But neither Kantilal applied for execution under, Order XXI, Rule 16, nor did the Ahmedabad Court at any time recognize him as the transferee; and, therefore, the question whether Kantilal was the heir and legal representative of his father or whether he was the surviving coparcener was neither considered nor determined. This case amply illustrates the necessity and desirability of the executing Court deciding in the first instance the capacity in which the applicant is applying for execution before making an order executing the decree.

12. The appeal, therefore, fails and must be dismissed with costs.


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