1. This appeal arises out of an application for execution made by the appellant in the Court of the Second Class Subordinate Judge at Bulsar on April 20, 1933.
2. The appellant got a deed of assignment in 1929 from a firm which had obtained a decree against respondent No. 1 in 1924. The appellant filed an application for execution on January 7, 1930, alleging that he was an assignee of the decree-holder. Notices were issued under Order XXI, Rule 16, but no process fee having been paid and no steps having been taken by the appellant to serve the notices on the judgment-debtors the darkhast was disposed of on July 15, 1930. The present application, being darkhast No. 272 of 1933, was filed on April 20, 1933. The point that arose for consideration was whether the execution application of 1930 was a step-in-aid of execution within the meaning of Article 182, Clause (5), of Schedule II, of the Indian Limitation Act. The learned Subordinate Judge held that it was a step-in-aid of execution, but in appeal the learned District Judge came to the contrary conclusion. The learned District Judge first considered the definition of a decree-holder under Section 2, Sub-section (3), of the Civil Procedure Code, wherein a decree-holder is defined as any person in whose favour a decree has been passed or an order capable of execution has been made, and held that the transferee of a decree was not a decree-holder unless he was recognised as such by the Court. He next held that under Order XXI, Rule 16, the giving of a notice of the application to the assignor and the judgment-debtor was an indispensable condition precedent to jurisdiction and that the failure to give such a notice rendered all the proceedings in execution void as against them. He further held that it was only after the assignment had been held to be valid that further proceedings in execution could begin, that in the present case the alleged assignee took no steps to have his alleged assignment proved, and that till it had been decided that he was legally entitled to maintain a darkhast no proceedings taken by him would be a step-in-aid of execution. Lastly, he considered the conduct of the appellant and apparently thought that there was a want of bona fide intention to proceed with his application.
3. It is admitted that the appellant made his application to the proper Court under Order XXI, Rule 16. It is also conceded by the learned advocate for the respondents that it is not necessary to go into the question whether the application was made with the bona fide intention of proceeding against the judgment-debtor. (Khalil-Ur-Rahman Khan v. Collector of Etah : s.c. 36 Bom. L.R. 237)
4. Order XXI, Rule 16, requires the transferee to apply for the execution of the decree to the Court which passed it. It is contended by the learned advocate for the appellant that the propriety or validity of such application is not dependent on subsequent proceedings, and that if it is a proper application it should be regarded as a step-in-aid of the execution.
5. In Rajitagiripathy v. Shavani Sankaram I.L.R. (1924) Mad. 641 in which an application made by the transferees of a decree for recognition of their transfer and for execution was dismissed owing to the execution itself being stayed, it was held, following Sreepada Brahmayya Pantulu v. Pmasuramayya : (1902)12MLJ348 that such an application was a step-in-aid of execution and saved limitation.
6. In Annamalai Mudaliar v. Ramier I.L.R. (1908) Mad. 234 an application purporting to be under Section 232, Civil Procedure Code (corresponding to the present Order XXI, Rule 16), was made by the transferee of a decree, praying to be recognised as assignee plaintiff in the suit and stating that when so recognised, he would file an execution petition, i.e. when the Court passed an order as prayed for, and the defendant did not appeal against such order; and it was held that such application was a step-in-aid of execution and an application in accordance with law within the meaning of Article 179, Clause (4) [corresponding to the present Article 182, Clause (5).], Schedule II of the Indian Limitation Act.
7. In Pitam Singh v. Tola Singh I.L.R. (1907) All. 301 an application was made by the transferee of a decree asking that his name might be substituted on the record for that of the original decree-holder, and it was held that the application was made to the proper Court to take some steps-in-aid of execution within the meaning of Article 179 of the second schedule of the Indian Limitation Act.
8. The learned advocate for the appellant relies on these cases and contends that it is not necessary that the transferee's application should actually result-in the Court's order recognising him to be a transferee and allowing the execution to proceed, and that it is enough for such application to be filed in the proper Court in order to be a step-in-aid of execution.
9. Mr. Choksi for the respondents has argued, however, that a person who claims to be an assignee of the decree must be regarded as a stranger to the decree till he is recognised as such, and that it is only after such recognition that he is clothed with the right of the decree-holder. He relies on Bando Krishna v. Narasimha I.L.R. (1912) Bom. 42 : 14 Bom. L.R. 861 in which Mr. Justice Chandavarkar held that if a person other than one entitled to apply applied for execution, or if the person entitled applied for execution in a mode and for a relief outside the decree, the application was not in accordance with law. Mr. Choksi in effect contends that though Order XXI, Rule 16, gives the right to the transferee to apply for execution, the word ' transferee ' in this rule can only mean one who has been proved or held to be a transferee. It does not appear to us that this contention is correct. We think that if that was the meaning of the word ' transferee,' the procedure prescribed for a person claiming to be a transferee would have been that he should first apply to be recognised as such a transferee, and that after such recognition he should be entitled to apply for execution. A somewhat similar view appears to have been taken by Mr. Justice B.J. Wadia in Baijnath v. Binjraj (1936) 39 Bom. L.R. 540. He held that the transferee must first apply under Order XXI, Rule 16, for execution and pray that the usual notice do issue ; and that after the objections had been heard and the notice was made absolute, the transferee must then again apply for execution of the decree under Order XXI, Rule 11, specifying the mode or modes in which the assistance of the Court was required. Mr. Justice Wadia, however, concedes that the transferee, i.e. the person claiming to be such, must first apply under Order XXI, Rule 16, for execution and not merely for recognition as the transferee. We do not, however, think that it is necessary under the Civil Procedure Code that the transferee should make two separate applications, one under Order XXI, Rule 16, followed by another application under Order XXI, Rule 11. We agree with the observations of Mr. Justice Srinivasa Ayyangar in Palmiappa Chettiar v. Subramcmia Chettiar I.L.R. (1924) Mad. 553 that the scheme of the Code is that the transferee by assignment in writing or by operation of law merely files his application for execution of the decree setting out, either in it or in an affidavit he has filed in support thereof, that he is the transferee either by operation of law or by any particular instrument in writing and that thereupon the Court orders the application for execution or rejects it. Thus there can be no doubt that the word ' transferee ' in Order XXI, Rule 16, means the person claiming to be such.
10. Reference was also made by Mr. Choksi to Sitabai v. Gangadhar : AIR1935Bom331 in which it was held that the assignee of the decree did not become a holder of the decree within the meaning of Order XXI, Rule 16, and Section 2 of the Civil Procedure Cede unless he applied to the Court to bring himself on the record in place of the judgment-creditor. There is no doubt that in the absence of such an application an assignee would remain a stranger to the decree, but this does not mean that he would remain a stranger even after he has made such application. Mr. Choksi also relies on Harnanid Rai Phul Chand v. Rup Chand Chiranji Lal I.L.R. (1933) Lah. 744 in which it was held that the person appearing on the face of the decree as the decree-holder was the person entitled to execution, and that the executing Court was bound to allow execution at the instance of the trans-feror, even after the date of the transfer, till the transfer was recognised by the Court. This view, however, does not override the provisions of Order XXI, Rule 16, under which the right to apply for execution of the decree has been expressly conferred on the transferee. In the present case, the assignee did make an application under this rule and it cannot be said that he did so as a stranger to the decree, i.e. as a person having no rights at all in respect of the decree.
11. There is no doubt, however, that as the objections to the assignee's application had not been heard the decree could not be executed at the instance of the transferee. Any proceedings taken for the purpose of actually executing the decree, for instance, attachment of the judgment-debtor's property, must necessarily be preceded by a decision of the Court, after the objections have beenduly heard, that the person claiming to be the transferee of the decree is actually such transferee. Thus, in Kassum Goolam Hoosein v. Dayabhai Amarsi I.L.R. (1911) Bom. 58 : 13 Bom. L.R. 973 in which the transferee of a decree having preferred a darkhast for execution, the judgment-debtor's property was attached in his shop by seizure before hearing his objections, it was held that such attachment was unlawful, not merely irregular. It seems, however, to us that saying that the decree cannot be executed is not the same thing as saying that no action can be taken which may be regarded as a step-in-aid of execution.
12. In Raghutnath Govind v. Gangaram Yesu I.L.R. (1923) Bom. 643 : 25 Bom. L.R. 474 Sir Norman Macleod C.J. held that an application by an assignee of a decree under Order XXI, Rule 16, would (p. 647) ' be heard by the Court, not as a Court which was 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 a decree.' Without expressing any opinion as to whether the Court in such a position can be regarded as the executing Court or not, it seems that the distinction pointed out shows that a stage in which the execution of a decree, properly so called, cannot proceed, is not necessarily one in which, or prior to which, no step can be taken which may be regarded as a step facilitating the execution of the decree. In our opinion, the application made by the transferee in the present case, which he was statutorily entitled to make by the terms of Order XXI, r, 16, must be regarded as a step-in-aid of execution within the meaning of Article 182, Clause (5).
13. In arriving at this decision we have relied on the lines of reasoning followed in Rajitagiripathy v. Bhavani Sankaram I.L.R. (1924) Mad. 641, Annamalai Mudaliar v. Ramier I.L.R. (1908) Mad. 234 and Pitam Singh v. Tola Singh I.L.R. (1907) All. 301. We do not think that the arguments advanced in the judgment of the learned District Judge are sustainable and think that the contentions of the learned advocate for the respondents must also fail.
14. In the result, therefore, the appeal is allowed and the order of the learned District Judge is set aside. We think that issues Nos. 2 and 3 of the appellate Court should be decided by the trial Court after taking evidence and not merely on affidavits. The case will, therefore, go back to the trial Court for this purpose. The appellant will get his costs in this Court and the lower appellate Court. The costs in the trial Court will abide the result of further proceedings in that Court.
15. I agree.