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Kundanmal Jasraj Marwadi Vs. Surajkuvarbai Tarachand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 811 of 1941
Judge
Reported inAIR1943Bom455; (1943)45BOMLR859
AppellantKundanmal Jasraj Marwadi
RespondentSurajkuvarbai Tarachand
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), section 47-civil procedure code, (act xiv of 1882), section 244-decree-assignment-validity of assignment-whether it can be questioned in execution proceedings and not by separate suit.;the question whether the assignment of a decree by the decree-holder is valid is one which falls within the purview of section 47 of the civil procedure code, 1908, and must be determined in execution proceedings, and not by a separate suit.;bommanapati veerappa v. chintakunta srinivasa rau (1902) i.l.r. 26 mad. 264, distinguished.;ishar das v. salig ram [1929] a.i.r. lah. 51, dissented from. - - it appears that the plaintiff was called upon to furnish security, and as he failed to do so, the assignment was upheld and defendant no. chintakunta srinivasa rau being..........of the dismissal of the plaintiff's suit on the ground that it was barred under section 47 of the civil procedure code.2. ralli brothers of bombay obtained a decree against the plaintiff, defendant no. 2 and one indrabhan nemichand as partners of a firm named kundanmal narayandas in suit no. 947 of 1932 in the high court of bombay. the decree was then assigned by the decree-holders to defendant no. 1, the step-mother of defendant no. 2. defendant no. 1 made an application to the high court under order xxi, rule 16, civil procedure code, 1908, to have her name brought on record and to have the decree transferred to the ahmednagar court for execution. a notice was duly issued and served on the plaintiff. the plaintiff contended that the assignment was bogus and did not give defendant no......
Judgment:

Lokur, J.

1. This appeal arises out of the dismissal of the plaintiff's suit on the ground that it was barred under Section 47 of the Civil Procedure Code.

2. Ralli Brothers of Bombay obtained a decree against the plaintiff, defendant No. 2 and one Indrabhan Nemichand as partners of a firm named Kundanmal Narayandas in suit No. 947 of 1932 in the High Court of Bombay. The decree was then assigned by the decree-holders to defendant No. 1, the step-mother of defendant No. 2. Defendant No. 1 made an application to the High Court under Order XXI, Rule 16, Civil Procedure Code, 1908, to have her name brought on record and to have the decree transferred to the Ahmednagar Court for execution. A notice was duly issued and served on the plaintiff. The plaintiff contended that the assignment was bogus and did not give defendant No. 1 a right to execute the decree. It appears that the plaintiff was called upon to furnish security, and as he failed to do so, the assignment was upheld and defendant No. 1 was allowed to proceed with the execution of the decree, The plaintiff then filed this suit for a declaration that defendant No. 1 had no right to execute the decree against him as the assignment taken by her was bogus. The defendants contended that the suit was barred as res judicata by reason of the decision in the execution proceedings upholding the assignment, and that the suit was also barred under Section 47, Civil Procedure Code. The contention regarding the bar of res judicata was disallowed, but the suit was dismissed on the ground that it was barred under Section 47, Civil Procedure Code, The plaintiff's appeal to the District Judge being summarily dismissed, he has now come in appeal to this Court.

3. It is urged that although the question of the validity of the assignment can be heard by the executing Court under Section 47, yet a suit to have the assignment declared invalid or bogus is also maintainable, as held in Bommmapati Veerappa v. Chintakunta Srinivasa Rau I.L.R. (1902) Mad. 264 and Ishar Das v. Salig Ram A.I.R. [1929] Lah. 51. In Bommanapati Veerappa v. Chintakunta Srinivasa Rau it was held that a suit was maintainable at the instance of an assignee of a decree for a declaration as to the validity of the assignment, though the Court passing such a declaratory decree should limit itself to the declaration and should not declare that the assignee was entitled to execute the decree. That case was decided under the provisions of Section 244, Civil Procedure Code of 1882. But the relevant clause of that section was materially different from Sub-section (3) of Section 47 of the Civil Procedure Code of 1908. The present Sub-section (3) provides :-

Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

4. The corresponding clause in Section 244 of the Code of 1882 ran :-

If a question arises as to who is the representative of a party for the purposes of this section, the Court may either stay execution of the decree until the question has been determined by a separate suit or itself determine the question by an order under this section.

5. Thus what was permissive under the old Code is mandatory under the present Code. The reason for the change evidently is that since there was a great delay and expense in a separate suit before the execution proceeded, it is now made compulsory for the executing Court to decide the question itself. In the other case relied upon, Ishar Das v. Salig Ram, the ruling in Bommanapati Veerappa v. Chintakunta Srinivasa Rau was followed, and it was held that a suit for a declaration that the assignment of the decree was invalid and fraudulent was maintainable and was not barred by Section 47, Civil Procedure Code. It was observed that there was a practical inconvenience for an executing Court to enter into an inquiry regarding the validity of the assignment. With profound respect, I think that the difference between the wording of the old Section 244 and Sub-section (3) of Section 47 in the new Code was not brought to the notice of the learned Judges who decided that case. The decision in Bommanapati Veerappa v. Chintakunta Srinivasa Rau being based on the old section is no longer good law, since Sub-section (3) of Section 47 makes it compulsory for the executing Court to decide the question of the assignment of the decree. That question, therefore, is one falling within the purview of Section 47, Civil Procedure Code, and, therefore, must be determined by the executing Court and not by a separate suit.

6. It was urged that even then the suit should not have been dismissed, but it should have been treated as a proceeding in execution under Sub-section (2) of Section 47. No such prayer appears to have been made in the Courts below. But even assuming that such a request can be granted now, the question raised by the plaintiff regarding the validity of the assignment was decided in execution proceedings by the High Court and cannot be re-agitated in execution proceedings in the Court to which the decree has been transferred by the High Court. The plaintiff's contention would obviously be barred as res judicata, and it will not be open to the Ahmednagar Court to consider whether the assignment is valid or not. In that case also the plaintiff must fail. The appeal is, therefore, dismissed with costs.


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