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Mahadeo Baburao Halbe Vs. Anandrao Shankarrao Deshmukh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 64 of 1931
Judge
Reported inAIR1933Bom367; (1933)35BOMLR795
AppellantMahadeo Baburao Halbe
RespondentAnandrao Shankarrao Deshmukh
DispositionAppeal allowed
Excerpt:
.....succession, and a transferee by operation of law would be a legal representative of the deceased decree-holder or the person in whom the interest of the decree-holder has become vested under a statute, e.g., the official assignee of the insolvent under the presidency-towns insolvency act, or the purchaser at a court sale in execution of a decree.;the plaintiff's adoptive grandmother, whilst she was in management of the property, obatained a money-decree which was made payable by instalments, and recovered the first instalment. the plaintiff then obtained a decree against his grandmother establishing his adoption, and entilting him to obtain possession of the family property. in execution proceedings the grandmother produced a copy of the money decree. the plaintiff' having applied to..........order xxi, rule 16, regulates the procedure to be followed in a case where the interest of the decree-holder is vested in a person other than the decree-holder. it runs as follows :-where a 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 some manner and subject to the said conditions as if the application were made by such decree-holder : provided &c.;it is clear on the record in this case that there was no assignment in writing. mr, dixit, however, contends that the respondent became a transferee of the decree by operation of law. he says that by reason of the fact that the decree passed in suit no. 422 of 1920 in favour of the respondent.....
Judgment:

Rangnekar, J.

1. The principal question in this appeal is whether the respondent has a locus standi to apply for executing a decree obtained by one Rangubai against the appellant in suit No. 162 of 1922; and this turns upon the construction of Order XXI, Rule 16, of the Civil Procedure Code.

2. Order XXI, Rule 16, regulates the procedure to be followed in a case where the interest of the decree-holder is vested in a person other than the decree-holder. It runs as follows :-

Where a 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 some manner and subject to the said conditions as if the application were made by such decree-holder : Provided &c.;

It is clear on the record in this case that there was no assignment in writing. Mr, Dixit, however, contends that the respondent became a transferee of the decree by operation of law. He says that by reason of the fact that the decree passed in suit No. 422 of 1920 in favour of the respondent ordering Rangubai to deliver the property belonging to Ganpat and the further fact that in execution of that decree amongst other things a copy of the decree of June 17, 1922, was produced by Rangubai, the respondent became a transferee by operation of law. In the first place there was no evidence before the Courts below as to why and how this decree was produced or whether it was delivered to the respondent, and there is nothing about this in the judgment of the appellate Court. It is mentioned in the judgment of the Court of first instance, however, that a copy of the decree was produced in the proceedings which took place in the execution of the respondent's decree in his suit. Then there is the further fact that there is nothing to show that the monies or the debt in respect of which the decree was obtained by Rangubai was a part of the estate of Ganpat. For aught one knows it may be her stridhan and the production may be the result of a mistake or misapprehension or carelessness. In fact neither of the Court has gone into this question and the parties have not, as far as I can see, led any evidence about it. It is a significant fact that the decree in favour of Rangubai was made in 1922 and the debt in respect of which it is passed was not mentioned in the list of properties given in suit No. 422 of 1920, and the decree in this suit as it stands does not specifically refer to the decree of Rangubai. Assuming, however, that a copy of the decree was produced in the case of proceedings taken to carry out the decree in suit No. 422 of 1920, the question is whether such production could make the respondent a transferee of the decree of 1922 'by operation of law' within the meaning of Order XXI, Rule 16. Apart from the facts which I have mentioned the question is, what is the meaning of the expression 'by operation of law ?' In my opinion, according to the natural meaning of the words, a transfer by operation of law means a transfer on the death or by devolution or by succession, and a transferee by operation of law would be a legal representative of the deceased decree-holder, or the person in whom the interest of the decree-holder has become vested under a statute, e. g. the Official Assignee of an insolvent under the Presidency-towns Insolvency Act, or the purchaser at a Court sale in execution of a decree. No case has been cited bearing on the point in this appeal, but I am supported in the view that I am taking by the observations of the Privy Council in the case of Abidunnissa Khatoon v. Amirunnissa Khatoon I.L.R. (1876) Cal. 327 a case under Section 208 of the Civil Procedure Code of 1859, which was to the same effect as Order XXI, Rule 16, of the present Code. In that case it was observed as follows (p. 333) :-

Then we come to Section 208, which, undoubtedly, is a section relating to proceedings for execution, and after judgment and decree. It is to this effect:-' If a decree shall be transferred by assignment or by operation of law from the original decree-holder to any other person, application for the execution of the decree may be made by the person to whom it shall have been so transferred, or his pleader ; and if the Court shall think proper to grant such application, the decree may be executed in the same manner as if the application were made by the original decree-holder.' It appears to their Lordships, in the first place, that, assuming Wajed to have the interest asserted, the decree was not, in the terms of this section, transferred to him, either by assignment, which is not pretended, or by operation of law, from the original decree-holder. No incident had occurred on which the law could operate to transfer any estate from his mother to him. There had been no death ; there had been no devolution ; there had been no succession. His mother retained what right she had ; that right was not transferred to him ; if he had a right, it was derived from his father ; it appears to their Lordships, therefore, that he is not a transferee of a decree within the terms of this section.

3. The only course open to the respondent was either to apply in execution of his own decree for the appointment of a receiver of Rangubai's decree or to follow the procedure laid down in Order XXI, Rule 53, if it was contended that the decree in favour of the respondent gave him the right to proceed in accordance with that rule. Instead of doing this, he proceeded straightway to execute Rangubai's decree as if he was the proprietor of it and this he could not do as there was no assignment of the decree in writing in his favour, nor, in my opinion, was he a transferee by operation of law. In my opinion, therefore, the respondent had no locus standi to apply in execution of Rangubai's decree, and the Court had no jurisdiction to order execution to issue in his favour.

4. In this view it is not necessary to go into the question of limitation.

5. I would, therefore, allow the appeal and reverse the order made by the lower Courts. Respondent to pay the costs of this appeal. Each party to bear his own costs in the Courts below.


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