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Ramchandra Krishnaji Chandole Vs. Vithu Govind Panhale - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 157 of 1938
Judge
Reported inAIR1941Bom65; (1940)42BOMLR1057
AppellantRamchandra Krishnaji Chandole
RespondentVithu Govind Panhale
DispositionAppeal allowed
Excerpt:
decree-assignment-void assignment-decree to make clear whether assignment is void altogether or only void between parlies-application for execution of decree by assignee under assignment which is declared of no effect subsequently-such application valid for purposes of limitation.; where the court holds an assignment of a decree to be void, it should make it clear whether the assignment is void altogether or whether it is void only as between the parties to the suit.; an application for execution made by an assignee of a decree is valid for purposes of limitation even though the assignment is in a subsequent suit held to be of no effect as from the date of the suit. - - 3. now, the decree which was made in the present case is a good illustration of the loose and inefficient manner in..........follows in the order, namely, that the decrees mentioned in the assignment, which include the suit decree, may be attached ' by creditors of the assignors against the assignors. it is difficult to see how the decrees could be attached against the assignors unless they had become revested in the assignors. so that, taking the decree as a whole, i feel no doubt that the learned judge intended to cancel the assignment and not merely to declare it void in part leaving it effective as between the assignors and the assignee and ineffective only against the creditors. if that is so, the assignors, the present appellants, can enforce the decree.4. it is suggested further that the darkhasts filed by the assignee were ineffective to prevent limitation running, but that would only be so if the.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal from an order of the Assistant Judge of Sholapur which raises a question of law. The material facts are that on-June 23, 1924, one Krishnaji, the father of the present appellants, obtained a mortgage instalment decree, and his successors are still trying to enforce it. In 1926, and again in 1927, darkhasts were filed by Krishnaji or his heirs, which would have the effect of keeping the decree alive. On January 23, 1930, the guardian of the present appellants, who are the heirs of Krishnaji, assigned the decree to one Bawadhankar by deed, and in 1930, and again in 1934, the assignee filed darkhasts, which, if effective, would again have the effect of keeping the decree alive. In 1932, a creditor of Krishnaji filed a suit against the present appellants and their assignee for a declaration that the assignment to Bawadhankar was void against creditors, and on June 30, 1934, an order was made in favour of the plaintiff. The exact terms of the order I will refer to presently. Thereafter the present appellants filed this darkhast on the basis that the assignment to Bawadhankar had been set aside and therefore the right to execute the decree had re-vested in them. The trial Court directed the darkhast to proceed, but in appeal the learned Judge reversed that finding and declared that the appellants had no right to institute the present execution proceedings. He took the view, that although Section 53 of the Transfer of Property Act refers only to immoveable property, and the Court has to deal in this case with a decree, still a suit to set aside an assignment of a decree must be dealt with by Courts on principles analogous to those governing suits under Section 53, and that an assignment void under Section 53 is only void as against the creditors of the assignor, and is effective as between the assignor and the assignee. He held therefore that the assignment was still effective as against the ass gnors and therefore they could not enforce the decree, the subject-matter of the assignment.

2. The question must really turn on the meaning and effect of the order made by the Court in the suit to set aside the assignment. Now, there are, at any rate, two possible forms of order which may be made in a suit to set aside a settlement brought by creditors under Section 53 of the Transfer of Property Act. The forms will be found in Seton's Judgments and Orders, 7th edn., pp. 2280 and 2281. The first form provides for a declaration that the indenture of settlement is fraudulent and void as against creditors, and an order that the defendant do deliver up the indenture to the plaintiff to be cancelled. Under an order in that form the impeached document is cancelled. The other form provides for a declaration that the indenture of settlement is void as against the plaintiff and other creditors of the defendant, and an order that the trustees of the settlement do join and concur in all acts and things necessary for making the property comprised in the said indenture available for satisfying the claims of the plaintiff and of other creditors of the settlor, as shall be directed by the Judge at Chamber in case the parties differ. Under a decree in that form the settlement is not cancelled; it remains in force and the rights of the creditors are enforced under it.

3. Now, the decree which was made in the present case is a good illustration of the loose and inefficient manner in which decrees in the mofussil are, habitually I am afraid I must say, drawn up. The decree was in these terms:

It is hereby declared that the deed of assignment dated January 23, 1930, and the deed of correction dated June 19, 1930, passed by the mother of defendants Nos. 1 and 2 in the name of defendant No. 3 are bogus and fraudulent and they are hereby declared cancelled and of no effect against the plaintiff and other creditors of defendants Nos. 1 and 2.

It would be difficult to find any form of words better calculated to raise doubts as to what decree the learned Judge really intended to make. Did he intend to cancel the assignment altogether or only as against the creditors He first of all declares that it is bogus and fraudulent. Well, if it is bogus, it never had any effect at all, and it would be unnecessary to cancel it. But the rest of his judgment shows that he did not intend to hold that it was bogus in the sense of not having any effect at all in law. Then he says: ' It is hereby declared cancelled and of no effect against the creditors.' Well, you cannot cancel a document in part. You may declare a document to be invalid in part and give effect to it on that basis; but if a document is cancelled, it must cease to have any effect. Reading the whole order, I think the learned Judge intended to declare that the settlement was cancelled, and that is confirmed by the provision which follows in the order, namely, that the decrees mentioned in the assignment, which include the suit decree, may be attached ' by creditors of the assignors against the assignors. It is difficult to see how the decrees could be attached against the assignors unless they had become revested in the assignors. So that, taking the decree as a whole, I feel no doubt that the learned Judge intended to cancel the assignment and not merely to declare it void in part leaving it effective as between the assignors and the assignee and ineffective only against the creditors. If that is so, the assignors, the present appellants, can enforce the decree.

4. It is suggested further that the darkhasts filed by the assignee were ineffective to prevent limitation running, but that would only be so if the assignment was void ab initio, and as I have already said, the effect of the decree is merely to cancel the assignment as from the date of the suit. I think therefore that the appellants are entitled to execute the decree. The appeal, therefore, will be allowed with costs in this and the lower appellate Court.

N.J. Wadia, J.

5. I agree.


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