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Motilal Shivnarayan Vs. Santaram Bala and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 479 of 1951
Judge
Reported in(1954)56BOMLR164
ActsCode of Civil Procedure (CPC), 1908 - Sections 11 and 146 - Order 21, Rules 2, 15 and 16 - Order XLII, Rule 23; Judicature Act, 1873 - Sections 25(6); Dekkhan Agriculturists' Relief Act - Sections 71
AppellantMotilal Shivnarayan
RespondentSantaram Bala and ors.
Appellant AdvocateV.M. Tarkunde, ;R.B. Kotwal and ;R.G. Samant, Advs.
Respondent AdvocateV.V. Albal, ;A.V. Albal and ;G.N. Vaidya, Advs.
Excerpt:
.....an application, for execution of the whole of the decree at the instance of one of the joint decree-holders it is open to the court to make an order as may appear to the court necessary for protecting the interests of the other decree-holders who have not joined in the application for execution. ' it is this head-note, in fact, which is substantially responsible for the view taken by the courts below that the appellant in the present case, who is an assignee of a portion of the decree, is not entitled to execute the decree, though the decree clearly grants two distinct and different reliefs to the decree-holder. we do not think that this contention is well founded. this order was passed under order xxi, rule 2, and was clearly appealable. therefore, in our opinion, the best order..........justice murphy had to consider the question as to whether it was permissible to the holder of a money decree to execute the decree first for the amount. of the decree and secondly for the interest due from the date of the decree to the date of payment. they held that a decree for the payment. of money and interest is a single and indivisible decree and it cannot be said to give different forms of relief. therefore, such a decree must be executed wholesale and cannot be permitted to be executed piecemeal. dealing with this point, beaumont c. j. observed that this rule which prohibits piecemeal execution of decree is subject to one important exception and that is where the decree in question awards two or more different and distinct reliefs.and he added that upon the soundness of the.....
Judgment:

Gajendragadkar, J.

1. The short question which arises for decision in this appeal is whether the darkhast filed by the appellant is maintainable in law. A decree was passed in favour of one Parshuram and against the respondents. This decree provided that the respondents were to give to Parshuram possession of Section Nos. 19 and 107 before November 15, 1941. It further provided that as to Section Nos. 18, 87 and 90, if the respondents paid to Parshuram Rs. 1,000 before. October 28, 1942, they would be entitled to hold the said property as owners; otherwise the decree-holder after waiting for two months should take possession of those lands from the respondents. This decree was passed on October 28, 1941.

The next day the decree-holder assigned his rights in respect of Section Nos. 18, 87 and 90 in favour of the present appellant for a consideration of Rs. 400. It is as an assignee of the said rights that the appellant has filed the present darkhast on June 11, 1946. Both the Courts below have held that the assignment in favour of the appellant amounts to a partial assignment and since a. partial assignment of a decree is not permissible, under the law, the darkhast filed by him is not maintainable. In coming to this conclusion both the Courts have relied upon a decision of this Court in -- 'Narayandas v. Tejmal', AIR 1934 Bom 59 (A). That is how the question which we have to consider is whether the partial assignment of the decree in question in favour of the appellant entitles him to claim execution of the decree under Order XXI, Rule 16.

2. It would be convenient at the outset to consider this Question in the light of the material provisions of the Code of Civil Procedure. Order XXI, Rule 16, enables the assignee of a decree to apply for execution of the decree assigned to him. It provides that 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 same manner and subject to the same conditions as if the application were made by such decree-holder. It would be noticed that the assignee by act 'inter vivos' is placed on the same footing as the person or persons on whom the decree-holder's rights under the decree have devolved by operation of law.

No distinction is made between these two cases of devolution of the decree-holder's rights. There can be no doubt that by operation of law the decree-holder's rights can devolve upon more than one person. Cases of devolution of estates in favour of more heirs than one are not unknown; and so wherever the decree-holder's rights have by succession vested in more heirs than one, they or any one of them would be entitled to apply to execute the decree under Order XXI, Rule 16, read, if necessary, with Order XXI, Rule 15. In other words, it would be no answer to the claim made by such an heir to execute the decree to say that he does not represent the whole of the decree-holder's interest in the decree.

If that be so, it is difficult to see why such a limitation should be imposed on an assignee of the decree by act 'inter vivos'. In our opinion, therefore, looking at the scheme of Rule 16 of Order XXI, it does appear that this rule does not expressly prohibit the partial transfer of a decree in favour of an assignee.

3. It is true that Rule 16 itself provides that when an assignee seeks to execute the decree, the decree may be executed in the same manner and subject to the same conditions as if the application had been made by the decree-holder himself. If a decree can be executed piecemeal, there is no reason why an assignee in whose favour part of the decretal rights have been transferred should not be entitled to execute the decree so far as it relates to the part assigned to him.

It may be that if the decree is of such nature that it cannot be executed piecemeal different considerations may arise. Therefore, in dealing with the question as to whether partial assignment of any given decree is effective or not, it would always be necessary to consider the nature of the decree, the rights under which are partially transferred to the assignee. It would not be correct to lay down a general proposition either one way or the other.

4. It may be relevant in this connection to consider the provisions of Section 146 of the Code of Civil Procedure. This section provides that except as otherwise provided by the Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be made by or against any person claiming under him. The argument based on the provisions of Section 146 is similar to the argument based on the wording of Order XXI, Rule 16, where no distinction is made between different heirs succeeding to the decree-holder's rights and an assignee obtaining some of the rights of the decree-holder by assignment.

Under Section 146 there can be no doubt that a proceeding which could have been taken by the original decree-holder can be taken by his heirs at law, even though each one of those heirs may be entitled only to a part of the decree-holder's total rights. If that is the position with regard to the heirs, there is no reason why the same principle-should not apply in regard to a partial assignee-of the decree-holder's rights.

5. The provisions of Order XXI, Rule 15, may also-have to be considered in dealing with this question. This rule deals with applications for execution by joint decree-holders and its provisions enable any one or more of joint decree-holders to apply for the execution of the whole decree for the benefit of them all. It is perfectly true that in entertaining an application, for execution of the whole of the decree at the instance of one of the joint decree-holders it is open to the Court to make an order as may appear to the Court necessary for protecting the interests of the other decree-holders who have not joined in the application for execution.

But it is clear that the provisions of this rule expressly authorise one of the joint decree-holders who is not the owner of the totality of the decretal rights to execute the whole of the decree. It is hardly necessary to add that if a joint decree passed in favour of two or more decree-holders grants separate and distinct reliefs to each one of them, it would be open to each one of them to execute the decree so far as the relief granted to him is concerned. This is the position with regard to a joint decree.

6. Now, it is often- said that piecemeal execution should not be encouraged and is indeed not permissible in law. If this statement is intended, to lay down a general rule of universal application, an important exception to this rule must be mentioned; and this exception relates to decrees which give two distinct and different reliefs to the decree-holder. If under a decree the decree-holder is entitled to obtain possession of immovable property and mesne profits, it would be open to him to execute the said decree piecemeal, first, by claiming possession of the property, and next by asking for mesne profits, or 'vice versa'.

In -- 'Panaji y. Ratanchand', AIR 1933 Bom 364 (B), Chief Justice Beaumont and Mr. Justice Murphy had to consider the question as to whether it was permissible to the holder of a money decree to execute the decree first for the amount. of the decree and secondly for the interest due from the date of the decree to the date of payment. They held that a decree for the payment. of money and interest is a single and indivisible decree and it cannot be said to give different forms of relief. Therefore, such a decree must be executed wholesale and cannot be permitted to be executed piecemeal. Dealing with this point, Beaumont C. J. observed that this rule which prohibits piecemeal execution of decree is subject to one important exception and that is where the decree in question awards two or more different and distinct reliefs.

And he added that upon the soundness of the rule which allows piecemeal execution of such decrees he did not desire to cast any doubt whatever. Then he went on to consider the position of a money decree under which interest is awarded to the decree-holder and he held that the two reliefs granted by the decree for the payment of the principal and the payment of interest were not different and distinct reliefs and the decree was and continued to be a single money decree. The next question which the learned Judges had to consider in the said case was, whether it is the first application for partial execution which should be dismissed or the second, and they held that it is the second application which should be dismissed and not the first.

They took the view that there can be no legal bar to the decree-holder executing his money decree only partially because there is nothing to prevent him from giving up a part of his decretal claim. If after executing the money decree partially the decree-holder were to apply again for the execution of the said money decree to recover the balance due to him, the second application must be dismissed on the ground that piecemeal execution of such a money decree is not permitted under the law.

Strictly speaking, the provisions of Order XXI, Rule 2, are not applicable to execution proceedings and if we may point out with respect, until this judgment was delivered decrees of this type used to be executed piecemeal. But after this judgment was delivered, so far as this Court is concerned it must be taken to be settled that in regard to a money decree which awards interest to the decree-holder, it is a single decree, it is indivisible and must be executed wholesale and not piecemeal.

7. If we apply the principles laid down by Beaumont C. J. to the facts of this case there can be no doubt, in our opinion, that the decree in question gave two separate and distinct reliefs to the decree-holder. The first relief was with regard to the possession of Section Nos. 19 and 107. To this relief the decree-holder was unconditionally and immediately entitled. The second relief related to the possession of Section Nos. 18, 87 and 90. This relief was granted to the decree-holder conditionally. It was only if the defendants did not pay the decree-holder an amount of Rs. 1,000 before the date specified in the decree that his right to obtain possession of the said survey numbers arose.

Whereas the first relief could have been claimed immediately after the decree was passed, the second relief could not have been enforced until the period stipulated in the decree for the payment of the amount had passed and even then, only if the said payment was not made within the said period. Therefore, in our opinion, there can be no doubt that the two reliefs are distinct and different and that the decree-holder could have ' executed this decree piecemeal, as indeed he was bound to do, having regard to the conditions imposed by the decree in regard to the three survey numbers just mentioned.

8. If that be the true position, then Mr. Tarkunde is entitled to contend that under the provisions of Order XXI, Rule 16, the assignee is asking for no more and no less than what the decree-holder would himself have asked. Mr. Tarkunde says that the limitation which is imposed upon the rights of the assignee applying for the execution of the decree under Order XXI, Rule 16, is that the decree should be executed in the same manner and subject to the same conditions as if the application had been made by the decree-holder. Mr. Tarkunde argues that the decree-holder could have filed an application for execution in regard to these three survey numbers alone separately and the assignee is, therefore, entitled to ask for the same relief. In our opinion, Mr. Tarkunde is right.

9. There is, however, a decision of this Court which apparently seems to be against Mr. Tarkunde's contention. That is the judgment of Mr. Justice Mirza in AIR 1934 Bom 59 (A)'. The head-note of this case reads thus:

'An assignee of a portion of a decree is not entitled to execute the decree as a whole or in . part.'

It is this head-note, in fact, which is substantially responsible for the view taken by the Courts below that the appellant in the present case, who is an assignee of a portion of the decree, is not entitled to execute the decree, though the decree clearly grants two distinct and different reliefs to the decree-holder.

We think that in considering the judgment of Mr. Justice Mirza we must not forget that the learned Judge was dealing with a money decree, and, as I have already pointed out, a money decree cannot be executed piecemeal and if there is a partial assignment in respect of a money decree the assignee cannot purport to do what the decree-holder himself could not have done. Mr. Tarkunde, no doubt, contends that in regard to the partial assignment of even a money decree it would be open to the assignee to ask the Court to treat him as a joint decree-holder along with the original decree-holder and to execute the decree under the provisions of Order XXI, Rule 15.

It is not necessary for us to consider this aspect of the matter in the present appeal. Mr. Justice Mirza, while dealing with a money decree, referred to the English practice and came to the conclusion that though there is no specific provision in the Code of Civil Procedure prohibiting an application for execution by an assignee of a part of a money decree, he should not be allowed to execute the decree partially, following the English practice. In support of his conclusion the learned Judge referred to the two English decisions in -- 'Forster v. Baker' 1910-2 KB 636 (C) and --'Rothschild v. Fisher', 1920-2 KB 243 (D).

He also considered the other decisions of the Indian High Courts which were cited before him and he ultimately held that (p. 62):

'......The reason why the transferee cannot be permitted to execute a part of the decree only is this, that the decree-holder himself would not be so permitted. A decree for purposes of execution must be regarded as a whole and indivisible: when it is sought to execute it it must be executed as a whole and not split up into parts.'

Then the learned Judge went on to add that

'Even in the case of a joint decree the joint decree-holder is required under the provisions of Order XXI, Rule 15. to apply for the execution of the whole decree,'

and so he ultimately held that

'A part assignee..... cannot be regarded as a joint decree-holder.'

With respect, if these observations were intended to apply to all decrees without making any distinction as to the character and the nature of the reliefs granted by them, we are disposed to think that they do not correctly represent the position of the law. With respect again, the observations made by the learned Judge may perhaps have been right in regard to the money decree with which he was dealing. The criticism which Mr. Tarkunde has made even on this part of the judgment need not be considered by us in the present case. But we must hold that in regard to a decree which grants to the decree-holder two or more distinct and different reliefs it would not be correct to say that if one of the reliefs so granted by the decree is assigned by an act 'inter vivos', the assignee could not be permitted to execute that decree.

In our opinion, the test which has been correctly laid down by the learned Judge yields an answer which Is against the view which he has so broadly expressed, because the test is, whether the transferee should be permitted to execute a part of the decree if the decree-holder himself could not be so permitted. It must follow from the application of this test that if the decree-holder can execute the decree in part, an assignee of a distinct and separate part would also be entitled to execute the decree in regard to that part.

Therefore, in our opinion, the statement of the law which is contained in the head-note in --'Narayandas' case (A).' must be confined to the case of a money decree which in law amounts to a single and indivisible decree.

10. Incidentally, we may point out that the two English decisions to which Mr. Justice Mirza referred were also concerned with money decrees. In -- 'Forster v. Baker (C)' a judgment-creditor had assigned part of the judgment debt for valuable consideration & the assignee thereupon applied under Order XLII, Rule 23, for leave to issue execution. Mr. Justice Bray who dealt with this application disallowed the prayer on the ground that there cannot be an absolute assignment within the meaning of Section 25, Sub-section (6), of the Judicature Act, 1873, of a definite part of an existing debt or other legal chose in action, in other words, according to Mr. Justice Bray the assignment itself was not valid and effective in view of the provisions of Section 25 (6) of the Judicature Act.

When the matter went in appeal, Vaughan Williams L. J. put his decision on the ground that the decree-holder had only one judgment, and upon that Judgment he could issue only one execution. Despite the assignment the remedy is still the same and so an assignee in whose favour a part of the decretal debt is assigned is not entitled to execute the decree. Pletcher Moulton L. J., who agreed with this conclusion, put his decision also on the ground which had found favour with Mr. Justice Bray. He held that even if the provisions of Section 25(6) of the Judicature Act were construed broadly and liberally, 'the remedy of which the appellant seeks to avail herself is not a legal remedy within the meaning of that Sub-section.'

The other decision to which Mr. Justice Mirza has referred is reported in -- 'Rothschild v. Fisher', (D). The point which arose for decision in this case was whether a receiver should be appointed in a particular case, and following -- 'Forster v. Baker', (C), It was held that the plaintiff could not split up into different parts his judgment-debt which included both Interest which had accrued due before and interest which had accrued after the date of the marriage, and so it was not a case in which a receiver ought to be appointed.

It would thus be seen that in both the cases the learned Judges were dealing with the principle applicable to a decree for the payment of money and this principle was that a money decree is on'e and indivisible and it cannot be executed piecemeal or in part. We think there is no justification for applying the same principle to the case of a decree which awards to the decree-holder two distinct and different reliefs.

11. Mr. Tarkunde has then referred us to several decisions of the High Courts in India which have not accepted the broad proposition that a partial assignment is invalid and that the assignee of a part of the decree cannot execute the decree under Order XXI. Rule 16. These decisions are : --'Kishore Chand Bhakat v. Gisborne & Co.,' 17 Cal 341 (E), -- 'Muthiah Chettiar v. Govinddoss Krishnadoss', AIR 1921 Mad 599 (F), and -- 'Ram Sahai v. Madan Lal Kanhaiya Lal : AIR1926All346 . Mr. Tarkunde has also invited our attention to the fact that a Division Bench of this Court in --'Shankar Hari v. Damodar Vyankaji', AIR 1945 Bom 380 (H), have approved and accepted some of the principles laid down by the Madras High Court in -- 'Muthiah Chettiar's case', (F), though Mr. Justice Mirza has dissented from the said judgment.

The only decision which has taken the same view as Mr. Justice Mirza is reported in -- 'Siri Narain v. Eshan Ellahi', AIR 1951 Pun] 324 (I). In this case Khosla and Kapur JJ. were dealing with a decree for partition which also awarded mesne profits and costs and they held that such a decree cannot be split up into a decree for partition and a decree for mesne profits plus costs. In their opinion the decree must be taken as a whole and must be executed as a whole and not piecemeal. With respect, this view is inconsistent with the decision of this Court in -- 'Panaji v. Ratanchand', (B), to which I have already referred. It does not appear to have been brought to the notice of the learned Judges that the view which they were taking was opposed to the consensus of judicial opinion amongst the other Indian High Courts.

Having regard to the authorities cited before us at the Bar we think it would be correct to say that except for this decision of the Punjab High Court all the other High Courts have taken the view which is consistent with the decision of Beaumont C. J. to which I have already referred. Indeed, some of these decisions would seem to support the view that partial assignment of even a money decree is valid and effective. As I have already pointed out, we are not called upon to consider in this case whether partial assignment of a money decree is totally ineffective and the assignee can take no steps to execute it under Order XXI, Rule 16 or under Order XXI, Rule 15. Therefore, we must hold that the Courts below were wrong in dismissing the appellant's darkhast on the ground that the assignment in his favour is only in respect of a part of the decretal rights.

12. Mr. Albal for the respondents has argued that even if the assignee be held entitled to execute the decree, he would not be justified in claiming to recover possession of the three survey numbers, because what has been assigned in his favour is merely the decree-holder's right to claim Rs. 1,000 as mentioned in the second clause of the decree. We do not think that this contention is well founded. The assignment sets out the description of the properties and the contents of the decree which is being assigned. Then the document says that the lands, meaning the three survey numbers, 18. 87 and 90, are in the possession of the judgment-debtors. If the judgment-debtors do not. pay the amount of Rs. 1,000 in time the decree-holder is to recover possession of the lands through Court. 'This decree' says the document, 'I am assigning to you.'

Therefore, there can be no doubt that what was assigned by this document was the whole of the decretal rights in regard to these three survey numbers. It is no doubt true that the document then goes on to add that according to the terms of the decree the decree-holder was entitled to receive Rs. 1000, from the judgment-debtor and it authorises the assignee to receive that amount. In construing this clause it must be remembered that the assignment took place the very next day after the decree was passed and the only right which the decree-holder then had was to receive Rs. 1,000 within the specified time.

If the amount had been paid, the decree-holder would never have been entitled to claim possession of the lands in question. That is why, having assigned the whole of the decree-holder's rights in respect of this clause, the document warns the assignee that as the matters then stood if the specified amount was paid during the period mentioned, he was bound to take that amount. Reading the document as a whole we have no hesitation in coming to the conclusion that the light to recover possession of the properties in case default was made by the judgment-debtors in paying the amount of Rs. 1,000 has been assigned to the appellant. Therefore, in our opinion, he is entitled to claim possession of the properties in the present darkhast.

13. Mr. Albal has further contended that there has been an adjustment of this decree between his clients and the assignee himself, and Mr. Albal says that now that the application for execution is held to be competent we must give him an opportunity to prove this adjustment. Unfortunately for Mr. Albal, however, it is not open to him to take this point in these proceedings. He had applied to the Court that passed the decree praying that the adjustment pleaded by him should be certified. This application was made on January 4, 1944. Parties were heard and the learned Judge who dealt with this application dismissed it on the ground that the alleged adjustment had taken place more than ninety days before the application had been made and that the protection of Section 71 of the Dekkhan Agriculturists' Relief Act was not available to an adjustment of this type.

On this view he rejected the application for certifying the alleged adjustment. This order was passed under Order XXI, Rule 2, and was clearly appealable. It does not appear that Mr. Albal's clients challenged this order by going to the appellate Court and so far as the present execution proceedings are concerned, he is precluded from disputing the validity, the correctness or the propriety of the said order. Therefore, in our opinion, it is now too late for Mr. Albal to contend In the present proceedings that there has been a valid adjustment of the decree.

14. The result is, the appeal must be allowed & the application made by the appellant to execute the decree sent back to the executing Court for disposal in accordance with law.

15. In regard to the costs of this appeal, however, we cannot forget the fact that some settlement appears to have been made between the parties. The decision of the learned Judge by which he refused to certify the adjustment itself shows that the fact of the adjustment was not then seriously in dispute. Therefore, in our opinion, the best order as to costs would be that the parties should bear their own costs of this Court and the lower appellate Court. Costs in the trial Court will be costs in the execution.

16. Appeal allowed.


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