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Shankar Hari Deshpande Vs. Damodar Vyankoji Kulkarni - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 485 of 1938
Judge
Reported in(1941)43BOMLR883
AppellantShankar Hari Deshpande
RespondentDamodar Vyankoji Kulkarni
Excerpt:
.....of the provisions of rule 16. the question is whether the darkhast was bad in law as a step-in-aid of execution. i am told that the decree as between maruti and the judgment-debtor has been satisfied, and under these circumstances the present darkhastdar would be entitled to execute the decree only to the extent of two-thirds of the amount which may be due under the decree at the time when the darkhast was filed......as there were negotiations for compromise. on april 15, 1926, meghraj assigned the decree to two persons damodar and maruti. on july 7, 1926, the present appellants, who are two of the judgment-debtors, paid rs. 814 to one of the assignees, maruti. in 1929 the other assignee damodar alone filed darkhast no. 160 of 1929 against defendants nos. 1 and 5 only. he prayed for execution of the remaining part of the decree after giving credit for rs. 400 received by meghraj and rs. 814 received by maruti. that darkhast was disposed of on april 15, 1929. a third darkhast was filed in 1932 by damodar alone against defendant no. 2 only, and it was disposed of also on july 1, 1932, without any further execution. thereafter the present darkhast was filed on november 21, 1934, by damodar alone.....
Judgment:

Divatia, J.

1. This appeal arises in execution of a decree obtained by one Meghraj against the predecessor-in-title of the present appellants. Meghraj filed a darkhast in 1926 to execute the decree against all the defendants and prayed for recovery of Rs. 2,000 and odd. Rs. 400 were recovered and thereafter the darkhast was disposed of as there were negotiations for compromise. On April 15, 1926, Meghraj assigned the decree to two persons Damodar and Maruti. On July 7, 1926, the present appellants, who are two of the judgment-debtors, paid Rs. 814 to one of the assignees, Maruti. In 1929 the other assignee Damodar alone filed darkhast No. 160 of 1929 against defendants Nos. 1 and 5 only. He prayed for execution of the remaining part of the decree after giving credit for Rs. 400 received by Meghraj and Rs. 814 received by Maruti. That darkhast was disposed of on April 15, 1929. A third darkhast was filed in 1932 by Damodar alone against defendant No. 2 only, and it was disposed of also on July 1, 1932, without any further execution. Thereafter the present darkhast was filed on November 21, 1934, by Damodar alone against the heirs of the deceased defendant No. 6 and defendants Nos. 7 and 8. The main contention raised by the judgment-debtors was that the darkhast was time-barred on the ground that the two previous darkhasts by Damodar alone in 1929 and 1932 were not maintainable in law as one co-assignee alone cannot apply for execution, and as they cannot, therefore, be regarded as steps-in-aid of execution, the present darkhast of 1934 being more than three years after the last maintainable darkhast of 1926 was beyond time. The principal question, therefore, is whether those two darkhasts were maintainable in law.

2. The lower appellate Court had remanded this case for making Maruti, the co-assignee, as a party to these execution proceedings and for a decision as to what, and if so how much, right he had in the decree under execution. It was found that Maruti has one-third share and the present darkhastdar Damodar has two-thirds share in the decree, although in the deed of assignment the right, title and interest of the judgment-creditor have been transferred jointly in favour of the two transferees without any mention of their shares.

3. It is contended on behalf of the appellants that the two previous darkhasts of 1929 and 1932 ought to have been filed by Damodar as well as Maruti, because both of them were transferees, and there is no provision in the Civil Procedure Code which permits only one of the two assignees to execute a decree. The lower appellate Court has held that the provisions of Order XXI, Rule 15, would apply by analogy to the present case, and that, therefore the two previous darkhasts filed by Damodar alone were maintainable according to law.

4. Order XXI, Rule 16, of the Civil Procedure Code, provides:--

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 . . . .

Rule 15, which applies to joint decree-holders, provides:--

Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all . . . .

5. There is no express provision in the Civil Procedure Code which permits one of several assignees of a decree to execute the whole of the decree. The question then is whether the assignees would stand in the shoes of the decree-holder, and if so, the provisions of Rule 15 could be made applicable to them. It may be noted that this is not a case where only a part of the decree is assigned to two assignees, and therefore, the decision of this Court in Narandas Sunderdas v. Tejmal Bhagchand (1932) I.L.R. 53 Bom. 226 would not apply. It is there held that an assignee of a portion of the decretal amount is not entitled to execute the decree. It is true that the lower Courts have now found that Maruti has got one-third and Damodar has got two-thirds interest in the decree. But the deed of assignment is passed to both of them jointly, and not in separate shares, and it was for that reason that Damodar applied to execute the whole decree in the two previous darkhasts.

6. Mr. Abhyankar on behalf of the appellants relies upon two decisions in Md. Kazam v. Nadir Ali Shah [1931] A.I.R. Lah. 5 and Mt. Amiran v. Mt. Kaniz Aisha [1934] A.I.R. Pat. 627. In the first of these cases it is held that Order XXI, Rule 15, Civil Procedure Code, did not confer an unconditional right on one of the decree-holders to execute the decree, that all the legal representatives of the deceased decree-holder constituted one legal representative and that one of them could not execute the decree nor could give a valid discharge. The Patna case decides that Order XXI, Rule 15, refers to a decree which has been passed jointly in favour of more than one plaintiff, and that a transfer by operation of law is not an assignment. In that case the decree was passed in favour of one person only and it was held that Order XXI, Rule 15, referred to a decree which had been passed jointly in favour of more than one plaintiff, and it did not apply to the execution of a decree passed in favour of one person though such execution is sought by only one of the legal representatives of the deceased.

7. On the other hand, we have a decision of our High Court in Madhev Prabkakar v. Balaji Gavind (1926) I.L.R. 51 Bom. 143 5:45 PM 4/3/06It was there held that the presentation of an application for execution of a decree by one of the surviving coparceners of the deceased decree-holder is not invalid in view of the provisions of Section 146 and Order XXI, Rule 15, of the Civil Procedure Code. It was held that the darkhast was properly presented although it may be defective and that the executing Court may not proceed with execution on the application of one of the coparceners under the circumstances but at the same time the presentation by one of the surviving coparceners could not be said to be illegal so as to render the proceedings invalid. This decision is based upon the application of the provisions of Order XXI, Rule 15, by analogy to the case of more than one person succeeding to the right, title and interest of a deceased judgment-creditor. It is true that the surviving coparceners are not considered to be persons falling under Order XXI, Rule 16, of the Civil Procedure Code. But the reasoning on which the decision is based is clearly to the effect that where the right, title and interest of a judgment-creditor has devolved upon more than one person jointly and severally, any one of such persons can validly present an application for execution. Mr. Abhyankar says that the Court there wrongly applied the provisions of Section 146 because that section contemplates the application being made by any person claiming under the deceased decree-holder. His contention is that the surviving coparceners cannot be said to be persons claiming under the deceased decree-holder. But I am not concerned with that aspect of the decision. The point so far as is material to the present case is that this Court applied the provisions of Order XXI, Rule 15, to a case where the right, title and interest of a judgment-creditor devolved upon more than one person, and I think the reasoning in this case could be applied by way of analogy to the facts of the present case. I do not see any distinction in principle between the case of several assignees who have acquired the right, title and interest of the judgment-creditor and the case of persons on whom the interest of the judgment-creditor has devolved by operation of law, whether by way of succession or by survivorship. There is no harm to the judgment-debtor, in my opinion, if a decree is allowed to be executed by one of such persons under the proper safeguards which are mentioned in Rule 15. We are not concerned as to whether any relief could be necessarily given to the darkhastdar in such a darkhast. That would depend upon whether the interests of the other assignee are preserved. The only point arising here is whether the two previous darkhasts were maintainable as being in accordance with law and could therefore be regarded as stepsin-aid of execution. I am of opinion that those darkhasts were maintainable and therefore must be regarded as in accordance with law. The present darkhast, therefore, which is filed within three years from the previous darkhast, must be held to be in time.

8. Another point was raised on behalf of the appellants to the effect that notice under Rule 16 was not given in any of the two former darkhasts, but, as I said just now, we are not concerned whether the darkhast could be proceeded with or not on account of the non-compliance of the provisions of Rule 16. The question is whether the darkhast was bad in law as a step-in-aid of execution.

9. The findings returned by the lower Courts now are that the present darkhastdar Damodar has got two-thirds share in the decree and Maruti has got one-third share. I am told that the decree as between Maruti and the judgment-debtor has been satisfied, and under these circumstances the present darkhastdar would be entitled to execute the decree only to the extent of two-thirds of the amount which may be due under the decree at the time when the darkhast was filed. To that extent the order of the lower Court should be varied and with this variation the appeal is dismissed with costs.


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