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Shankar Hari Vs. Damodar Vyankaji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 40 of 1941
Judge
Reported inAIR1945Bom380; (1945)47BOMLR104
AppellantShankar Hari
RespondentDamodar Vyankaji
DispositionAppeal dismissed
Excerpt:
.....need be successful-application for execution under order 21, rule 16, not followed by notices to decree-holder and judgment-debtors-whether such application in accordance with law-application under rules 15 and 16 whether step-in-aid of execution.;where a decree has been assigned jointly in favour of more than one person, then such assignees may be1 deemed as joint decree-holders in virtue of section 146, civil procedure code, 1908, for the purpose of the application of the provisions of order xxi, rule 15, of the code. reading together order xxi, rules 15 and 16, and sections 146 and 151 of the code, any one of the assignees of a decree can execute it on behalf of himself and the other assignees. in such a case the proper course would be to require the other assignees to be brought on..........disposed of on july 1, 1932. in these two darkhasts no notice was issued either to the original decree-holder or to the judgment-debtors under order xxi, rule 16, of the code of civil procedure. the other assignee maruti was not a party to them. the present darkhast was filed by damodar against defendants nos. 7 and 8 and the heirs of defendant no. 6 on november 21, 1934. notices under order xxi, rule 16, were duly served and the assignment of the decree to maruti and damodar has been held proved. it has also been found that the shares; of maruti and damodar in the decree are one-third and two-thirds respectively, though the assignment was effected by a single deed. the only ground on which the darkhast is now attacked is that the two previous darkhasts being not in accordance with.....
Judgment:

Lokur, J.

1. This appeal under the Letters Patent from a decision of Mr. Justice Divatia arises out of execution proceedings. The decree sought to be executed was obtained by one Meghnath against eight defendants, of whom the appellants were defendants Nos. 7 and 8, for the recovery of Rs. 2,431-1-9 and costs of the suit. The decree was passed on September 1, 1923. Meghnath filed a darkhast to execute the decree and it was disposed of on April 15, 1926. Meghnath then recovered Rs. 400 out of Court and transferred the decree by a deed of assignment to one Maruti and the respondent Damodar on April 15, 1926. On July 7, 1926, the appellants paid Rs. 814 to Maruti out of Court and were absolved by him from all further liability under the decree. The other assignee Damodar, the present respondent, then presented darkhast No. 160 of 1929 against defendants Nos. 1 and 5 only, and it was disposed of on April 15, 1929. The next darkhast was filed by him against defendant No. 2 alone, and it was disposed of on July 1, 1932. In these two darkhasts no notice was issued either to the original decree-holder or to the judgment-debtors under Order XXI, Rule 16, of the Code of Civil Procedure. The other assignee Maruti was not a party to them. The present darkhast was filed by Damodar against defendants Nos. 7 and 8 and the heirs of defendant No. 6 on November 21, 1934. Notices under Order XXI, Rule 16, were duly served and the assignment of the decree to Maruti and Damodar has been held proved. It has also been found that the shares; of Maruti and Damodar in the decree are one-third and two-thirds respectively, though the assignment was effected by a single deed. The only ground on which the darkhast is now attacked is that the two previous darkhasts being not in accordance with law, the present darkhast is barred by limitation. Mr. Justice Divatia did not accept that contention and ordered that the darkhast should be proceeded with for the recovery of only two-thirds of the amount due under the decree at the date of the darkhast.

2. Various reasons are advanced by Mr. Thakor for the appellants in support of his contention that the darkhasts of 1929 and 1932 cannot save the bar of limitation. His principal contention is that they should have been filed by both the assignees Maruti and Damodar as there is no provision in the Code of Civil Procedure allowing only one of two assignees of a decree to execute it. It is true that there is no express provision to that effect. But by analogy the provisions of Order XXI, Rule 15, may be extended to such a case. Sub-rule (1) of that rule 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.

3. As the decree in the present case was not originally passed jointly in favour of two or more persons, the provisions of this sub-rule do not in terms apply to it. But though passed in favour of only one person, it has been assigned jointly to two persons and they, as the persons claiming under the decree, can execute the decree as if they were the decree-holders, It is true that the definition of 'decree-holder' in the Civil Procedure Code of 1882 included a transferee of a decree, and those words have now been omitted in Section 2, Sub-section (3), of the Code of 1908. But that omission is made good by the newly added Section 146 whereby the transferee of a decree, being a person claiming under the decree-holder, steps into his shoes and for all purposes he may be regarded as a decree-holder himself. If the assignment of the decree is jointly in favour of more than one, then such assignees may be deemed as joint decree-holders for the purpose of the application of the provisions of Order XXI, Rule 15, of the Code. This was the view taken by a full bench of the Madras High Court in Muthiah Chettiar v. Govinddoss Krishnadoss I.L.R (1921) Mad. 919 In that case it is held that where a portion of a decree is transferred to another either by assignment in writing or by operation of law, the transferee is in the position of a joint decree-holder and the executing Court has got the inherent power to grant him relief in execution by applying the general principles of law analogous to Order XXI, Rule 15. Otherwise, as observed by Wallis C.J., 'it would be a very unsatisfactory state of the law, if a decree-holder who has obtained valuable consideration for a part transfer of the decree were to be at liberty to abandon or delay the execution of the decree and defeat the right of the transferee.' Though such a transfer of a part of the decree is not regarded as valid by this Court in Narandas Sunderdas v. Tejmal Bhagchand I.L.R (1932) Bom. 226 : 35 Bom. L.R. 1162 yet the principle of the ruling regarding the application of Order XXI, Rule 15, is in accordance with the view expressed by Shah J. in Madhav Prabhakar v. Balaji Govind I.L.R (1926) 1 Bom. 143: 29 Bom. L.R. 75. There on the application of one out of several surviving co-parceners of a deceased decree-holder the darkhast was transferred to the Collector, and when it was pending before him the executing Court held that one surviving co-parcener could not maintain the application. The proceedings were, therefore, recalled from the Collector and the darkhast was dismissed. In the next darkhast filed by all the co-parceners a question arose whether for the purposes of limitation the period during which the proceedings were pending before the Collector could be deducted under Schedule III, para. 11(3), of the Code of Civil Procedure, and in holding that it could Shah J. gave two reasons. He said that the learned Judge who took a contrary view appeared to have taken an erroneous view in holding that because the darkhast was ultimately found not to have been properly presented, the order referring the matter to the Collector for execution and all the proceedings that were then pending before the Collector were wholly invalid. He further held that the darkhast was properly presented, although it was presented by one of the co-parceners only. He observed (p. 148):

Such a presentation could not be said to be invalid in view of the provisions of Section 146, Civil Procedure, Code, and the provisions of Order XXI, Rule 15. It may be defective and the executing Court may not proceed with execution on the application of one of them under the circumstances. But the presentation by one of the surviving co-parceners of the deceased decree-holder could not be said to be invalid so as to render the proceedings before the Collector invalid and so as to prevent the deduction of the time mentioned in Sub-para. (3) of para. 11 of the Third Schedule of the Code.

4. Mr. Thakor argues that the first ground was sufficient for the disposal of the appeal and, therefore, the second ground, which is relevant for our present purpose, was obiter. We think that both the grounds were equally relied upon in support of the finding that the time spent before the Collector should be deducted. Moreover, we entirely agree with the view expressed in the second ground. The wording of Section 146 is quite general. Order XXI, Rule 16, 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; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder.

5. This enables the transferee of a decree to execute the decree subject to the condition contained in the proviso that a notice should be given to the decree-holder and the judgment-debtors. Assuming that Order XXI, Rules 15 and 16 do not in terms apply to the execution of a decree by only one out of several assignees of that decree, Section 151 of the Civil Procedure Code will empower the executing Court to apply the principles analogous to those rules. Where rights are conferred by the Code and no provision is made for a particular set of facts, we think the Courts ought to apply the provisions which are nearest in point with such modifications as may be necessary, not refusing relief on the ground that the Legislature has not in terms made provision for a particular case. The object of Section 151 is to give such power to Courts and to prevent a failure of justice. Reading Order XXI, Rules 15 and 16 with Sections 146 and 151 of the Code, we see no objection to one of the assignees of a decree being allowed to execute it on behalf of himself and the other assignees. The Court may impose under Order XXI, Rule 15, Sub-rule (2), such terms for the conduct of the execution as may be necessary for the protection of the interests of the other assignees. Of course in such a case the proper course would be to require the other assignees to be brought on the record of the execution proceedings, and that has now been done in this case and Maruti has been added as a party to this darkhast.

6. Mr. Thakor has referred us to the cases of Mt. Amiran v. Mt. Kaniz Aisha : AIR1934Pat627 and Md. Kazam v. Nadir Ali Shah A.I.R [1931] Lah. 5. In the Patna case, a Mahomedan lady, who had obtained a mortgage decree, died leaving her father, her husband and her two daughters as her heirs. The two daughters alone executed the decree and purchased the mortgaged property at the execution sale. The judgment-debtors then applied to have the sale set aside. A similar application was made also by a transferee of the interest of the decree-holder's father. Both the applications were rejected by the executing Court and its orders were confirmed by the District Judge. In the High Court it was contended that the daughters were debarred from executing the whole decree without stating either that they were the sole decree-holders or that they were executing the decree on behalf of all the decree-holders as required by Order XXI, Rule 15. To repel that contention Agarwala J. observed that that rule referred to a decree passed jointly in favour of more than one plaintiff and not to a decree passed in favour of one person only. Nevertheless the sale was upheld, though it was in execution of the decree by only two out of the four joint legal representatives of the deceased decree-holder.

7. The Lahore case had to deal with the question of limitation. A decree-holder having died during the pendency of execution proceedings, his three sons, one of whom was a minor, continued the darkhast as his legal representatives. The darkhast was disposed of in 1924, and the minor son gave a fresh darkhast in 1929 within three years after attaining majority. The executing Court dismissed the darkhast as time-barred, but in appeal the High Court held it to be in time on the ground that the three sons constituted one legal representative of the deceased decree-holder, that one of them could not execute the decree or give a valid discharge, and that Order XXI, Rule 15, of the Code of Civil Procedure, did not affect Section 7 of the Indian Limitation Act, as it did not confer an unconditional right on one of the decree-holders to execute the decree, but such a right was subject to control by the executing1 Court. Nevertheless the minor son, who had attained majority, was allowed to execute the decree, though his two brothers were also the legal representatives of the deceased decree-holder. Jai Lal J., who (sitting singly) decided the case, does not seem to have been sure of his ground and he observed (p. 6):.the matter is not free from difficulty and it is not without some hesitation that I have reached the conclusion that the appeal must be accepted.

8. Thus in both these cases some only out of several legal representatives of a deceased decree-holder were allowed to execute the decree, and they can by no means be regarded as supporting the view that under the circumstances like the present an application made by one of the assignees to execute the decree is not tot be treated as made in accordance with law so as to save the bar of limitation.. If the remarks made in them are to be deemed to lay down any rule to the contrary, then we respectfully differ from them.

9. Mr. Thakor's next argument is that even if Damodar alone could present the darkhasts of 1929 and 1932, his applications were not in accordance with law as the notices required by the proviso to Order XXI, Rule 16, were not given to the decree-holder and the judgment-debtors. The expression 'in accordance with law' does not imply that the application must be successful. It may be in accordance with law for the purpose of Article 182(5) of the first schedule to the Indian Limitation Act and yet the applicant may not be entitled to any relief on account of circumstances other than there being any defect in the application itself. The notices under Oder XXI, Rule 16, Civil Procedure Code, are to be given after the application for execution is presented. A valid application made in accordance with law cannot cease to be in accordance with law by any subsequent default on the part of the applicant.

10. Mr. Thakor also argues that under Order XXI, Rule 15 (1), an application by one of the joint decree-holders becomes valid only after the Court allows the application by an order under Sub-rule (2). But as held in Gobardhan Das Dwarka Prasad v. Satish Chandra Rai I.L.R (1922) Pat. 609 once an application is made under Sub-rule (1), the mere fact that no order is passed by the Court under Sub-rule (2) does not make it any the less an application in accordance with law. Similarly an application under Order XXI, Rule 16, is a regular application for execution and no separate application is required for the issue of notices under the proviso. Hence whether such notices are issued or not and whether an order under Sub-rule (2) of Rule 15 is passed or not, the application is a step-in-aid of execution and is sufficient by itself to keep the decree alive.

11. Lastly, it is argued that at any rate the applications made by Damodar in 1929 and 1932 were not valid against the appellants who were not parties to them and cannot, therefore, save the bar of limitation as against: them. But if those applications were in accordance with law, then under Explanation 1 to Article 182 of the first schedule to the Indian Limitation Act they effectively keep the decree alive against all the judgment-debtors. The present darkhast must, therefore, be held to be in time.

12. The appeal is dismissed with costs.


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