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Bhagwandas Tejaji Vs. Motilal Chakabhai - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case Number Second Appeal No. 401 of 1943
Judge
Reported in(1946)48BOMLR583
AppellantBhagwandas Tejaji
RespondentMotilal Chakabhai
DispositionAppeal allowed
Excerpt:
.....code (act v of 1908), order xxi, rule 16-holder-assignee-assignee applying for transfer of decree-transfer of decree-application for execution in court of transfer-step in aid.;the court hearing the application of an assignee of a decree under order xxi, rule 16, of the civil procedure code, 1908, is an executing court.;bhavani shankar joshi v, gordhandas jamnadas (1943) l.r. 70 j. a. 50 : s.c. 46 bom. l.r. 228, krishna govind v. moolchand keshavchand (1941) 48 bom. l.r. 751, and ranchhod mathurdas v. kanchanlal (1944) 47 bom. l.r. 829, 830, followed.;remarks to the contrary in brijmohandas damodardas v. sadashiv lawman (1939) 41 bom. l.r. 1190 modified.;an application for transfer of a decree made in time to the court which passed the decree is one made in accordance with law..........was granted and the, order for the transfer of the decree as prayed for was endorsed below the decree. bhagwandas then presented darkhast no. 359 of 1939 in the court of the first class subordinate judge at ahmedabad on may 1, 1939, and it was disposed of on december 8, 1939. the present darkhast was then filed by him on february 28, 1940. the defendant judgment-debtor contended that bhagwandas was not entitled to execute the decree and that the execution was time-barred since the darkhast of 1939 had not been properly filed and could not be regarded as a step-in-aid of the execution. the executing court held that the decree having been allotted to the share of bhagwandas, he was entitled to execute it and that the execution of the decree was not time-barred and, therefore, it.....
Judgment:

Lokur, J.

1. This appeal arises out of execution proceedings. The decree sought to be executed was obtained by one Tejaji in small cause suit No. 801 oil 1931 for the recovery of Rs. 833 and costs from the defendant on June 29, 1931. As the decretal amount was not paid in time, the decree-holder Tejaji presented darkhast No. 748 of 1932 which was disposed of on December 7, 1932. Tejaji then died in March 1933 and his two sons, Bhagwandas and Hiralal, who became entitled to the decree by survivorship, presented darkhast No. 3387 of 1933 which was disposed of on September 21, 1934, Their next darkhast No. 209 of 1936 was disposed of on May 1, 1936. The brothers then separated and by a registered partition-deed dated June 29, 1936, the decree against the defendant was allotted to the share of Bhagwandas. Bhagwandas then applied to the Small Cause Court on April 21, 1939, for transfer of the decree to the Court of the First Class Subordinate Judge at Ahmedabad, alleging that the decree had fallen to his share at a partition between him and his brother. His application was granted and the, order for the transfer of the decree as prayed for was endorsed below the decree. Bhagwandas then presented darkhast No. 359 of 1939 in the Court of the First Class Subordinate Judge at Ahmedabad on May 1, 1939, and it was disposed of on December 8, 1939. The present darkhast was then filed by him on February 28, 1940. The defendant judgment-debtor contended that Bhagwandas was not entitled to execute the decree and that the execution was time-barred since the darkhast of 1939 had not been properly filed and could not be regarded as a step-in-aid of the execution. The executing Court held that the decree having been allotted to the share of Bhagwandas, he was entitled to execute it and that the execution of the decree was not time-barred and, therefore, it ordered that the darkhast should be proceeded with. But in appeal the learned District Judge, while agreeing with the finding of the executing Court that Bhagwandas had a right to execute the decree, found that the darkhast of 1939 had not been properly filed and therefore the darkhast was time-barred. He, therefore, dismissed the darkhast and Bhagwandas has presented this second appeal.

2. Both the application of Bhagwandas for a transfer of the decree made to the Small Cause Court and the subsequent darkhast of 1939 filed in the Court of the First Class Subordinate Judge to which the decree was transferred were presented within three years of the disposal of the previous darkhast of 1936. But it appears that the order of transfer of the decree was passed by the Small Cause Court without recording an express finding that Bhagwandas was an assignee of the decree under the deed of partition and without issuing a notice as required by Order XXI, Rule 16, of the Civil Procedure Code, But when the decree was returned with the Court's endorsement for being executed in the Court of the First Class Subordinate Judge at Ahmedabad, Bhagwandas had been recognised as the decree-holder entitled to execute it. The learned District Judge, relying upon the ruling in Brijmohandas Damodardas v. Sadashiv Laxman : AIR1940Bom5 , held that the application and the darkhast could not save the bar of limitation. The observations quoted by him from that decision are (p. 1.195) :.the assignee or transferee of the decree cannot continue any proceedings previously commenced, nor can he institute any. fresh proceedings for the execution of the decree, unless he makes an application under Order XXI, rule 16, to the Court which passed the decree. That application will be heard by the Court, not as a Court executing the decree, but as a Court which passed the decree, and it seems clear to me that until an order is made by the Court which passed the decree that execution may proceed at the instance of the transferee, it is not open to the transferee to execute the decree, nor is there any Court which is executing the decree.

3. The remark that the application under Order XXI, rule 16, of the Civil Procedure Code will be heard by the Court, not as a Court executing the decree, but as a Court which passed the decree' now requires to be modified in view of the ruling of the Privy Council in Bhavani Shankar Joshi v. Gordhandas Janinadas (1943) L.R. 70 J. A. 50 : 46 Bom. L.R. 228 and of a full bench of this Court in Krishna, Govind v. Moolchand, Keshavchand (1941) 48 Bom. L.R. 751. That remark was based on the decision of a division bench in Eaghnnath Govind v. Gangaram Yesu I.L.R (1928) Bom. 648 : 25 Bom. L R 474 and considering all these cases this Court has held in Banahhod Mathurdas v. Kanchanlal (1944) 47 Bom. L.R. 829 that it is now settled that the Court hearing the application of an assignee of a decree under Order XXI, Rule 16, is an executing Court.

4. But the other observations quoted by the learned District Judge from Brij-mohandas v. Sadashiv do not help the judgment-debtor in this case. In that ease the application under Order XXI, Rule 16, was made to the Court to which the decree had already been transferred, and, therefore, such an application could not be a step-in-aid of execution as the proper Court to which such an application was to be made was the Court which passed the decree. In the present ease the application for transfer of the decree was made to the Court which passed the decree and that application was in time. Such an application made in accordance with law is a step-in-aid of execution within the meaning of Article 185, Clause (5), of the first schedule to the (Indian Limitation Act. Mr. Thakor, however, argues that the application was made by Bhagwandas for execution of the entire decree on the ground that it had fallen to his share at the partition and that the absence of a notice under Order XXI, Rule 16, did effect a transfer of the decree in his favour. Assuming that the effect of the partition was to transfer the decree to Bhagwandas, yet Bhagwandas was already a co-owner of the decree and was thus entitled to at least half the decree even before the partition. In that capacity he was one of the two joint decree-holders and could execute the decree under Order XXI, Rule 15, of the Civil Procedure Code, and was, therefore, entitled to make an application for transfer of the decree. The executing Court to which the decree was transferred might ask for security from him in the interest of the other decree-holder, but none the less the application was a proper application made to a proper Court and would save the bar of limitation.

5. Moreover, no form is prescribed for an application under Order XXI, Rule 16, of the Civil Procedure Code. A mere statement that the applicant is an assignee is sufficient. It is then for the Court to issue a notice under Order XXI, Rule 16, and decide the applicant's right to execute the decree. If that step was not taken, the application is none the less a step-in-aid of execution In Shankar Hari v. Damodar Vyankaji (1944) 47 Bom. L.R. 104, it has been held that the expression 'in accordance with law' in Article 182(5) of the first schedule to the Indian Limitation Act does not imply that the application must be successful. It may be in accordance with law for the purposes of that article even though the applicant may not be entitled to any relief. Even if notices as required by the proviso to Order XXI, Rule 16, are not issued to the decree-holder and the judgment-debtor, the application does not thereby cease to be in accordance with the law. Hence the appellants' application for transfer must be held to be a step-in-aid of execution and is sufficient by itself to keep the decree alive.

6. There is also another aspect to be considered. When once the Court that passed the decree has recognised the applicant as entitled to execute the decree and ordered the transfer of the decree to another Court, then the latter Court is bound to execute it and a darkhast presented in that Court is a proper step in execution. As held in Prithvi Chand Lal Chaudhry v. Satya Kinkar Das I.L.R (1931) Pat. 94, where a decree is transferred and the name of the transferee is put upon the record by the Court which passed the decree, and the transferee obtains an order for execution in the Court of another district, it is beyond the jurisdiction of the latter Court to entertain any question as to the transferee's right to the execution sought. Hence the darkhast presented in the Court of the First Class Subordinate Judge at Ahmedabad is also sufficient to keep the decree alive.

7. I, therefore, hold that the darkhast is not time-barred and must be proceeded with. I set aside the order of the lower appellate Court and restore that of the executing Court, The respondent shall pay the costs of the appellant in this Court and in the lower appellate Court.


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