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Devanidhi Thimmakka Vs. Dodda Thimmappa - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberCRP No. 2332 of 1981
Judge
Reported inILR1985KAR1759
ActsTransfer of Property Act, 1882 - Sections 6; Code of Civil Procedure (CPC) , 1908 - Order 21, Rule 16
AppellantDevanidhi Thimmakka
RespondentDodda Thimmappa
Appellant AdvocateT.R. Rangaraju, Adv.
Respondent AdvocateServed
DispositionRevision allowed
Excerpt:
.....manner arising, secured or determined. the assignment deed in question speaks as though the entire decree for maintenance is assigned in their favour. the right to future maintenance cannot be assigned at all. it does not speak that the arrears of maintenance alone have been assigned to them. therefore, under these circumstances, the assignment itself is bad at law.;(b) civil procedure code, 1908 (central act no. 5 of 1908) - order 21 rule 16 -- assignee cannot seek impleading in pending exe. cution but must file an application for execution.;the remedy of an assignee is not to get himself impleaded in the pend-ing execution proceedings, but he must make a seperate application for execution. therefore, the impleading application is untenable under order 21 rule 16 cpc. - karnataka..........the assignment in favour of respondents 1 to 6.2. the decree holder sanna thimmakka had obtained a decree for maintenance against her son devanidhi sanaa thimmappa in o.s.no. 430/51-52. she filed the present execution case no. 152/1971 to recover the arrears of maintenance from the l.rs. of her son.3. the petitioners in i.a.no. 4 contended that the said decree holder sanna thimmakka had assigned the decree in their favour on 16-9-1971 and that thus they should be brought on record.4. the learned counsel shri rangaraju submitted that the assignment itself was bad at law under section 6 of the transfer of property act. section 6 of the transfer of property act prohibits the transfer of a right to future maintenance, in whatsoever manner arising, secured or determined. the learned author.....
Judgment:
ORDER

Kulkarni, J.

1. This is a revision by judgment debtors-1, 3 and 5 against the order dated 9-4-1980 passed by the Munsiff, Chitradurga, in Execution Case No. 152 of 1971 allowing I.A.No. 4 and recognising the assignment in favour of respondents 1 to 6.

2. The decree holder Sanna Thimmakka had obtained a decree for maintenance against her son Devanidhi Sanaa Thimmappa in O.S.No. 430/51-52. She filed the present execution case No. 152/1971 to recover the arrears of maintenance from the L.Rs. of her son.

3. The petitioners in I.A.No. 4 contended that the said decree holder Sanna Thimmakka had assigned the decree in their favour on 16-9-1971 and that thus they should be brought on record.

4. The Learned Counsel Shri Rangaraju submitted that the assignment itself was bad at law under Section 6 of the Transfer of Property Act. Section 6 of the Transfer of Property Act prohibits the transfer of a right to future maintenance, in whatsoever manner arising, secured or determined. The Learned Author Shri Mulla in his Transfer of Property Act, 6th Edition, on page 68 under Clause 19 has stated as :-

'The effect of this Clause is that the assignment of a decree for maintenance would be valid as to maintenance already accrued due but not as to future maintenance.'

The assignment deed in question speaks as though the entire decree for maintenance is assigned in their favour. The right to future maintenance cannot be assigned at all. It does not speak that the arrears of maintenance alone have been assigned to them. Therefore, under these circumstances the assignment itself is bad at law.

5. Order 21 Rule 16 C.P.C. reads as : -

'Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree holder in the 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 condition as if the application were made, by such decree-holder.'

The Learned Author Shri Mulla in his C.P.C. 13th Edition, Vol. II, on page 999 has stated as :-

'The cases under the present code held that the legal representative or assignee cannot apply for substitution in the pending proceeding, but must make an application for execution, the application to carry on the proceedings being treated as an application for execution under Order 21 Rule 16.'

Therefore the remedy of an assignee is not to get himself impleaded in the pending execution proceedings, but he must make a separate application for execution. Therefore the present impleading application is also untenable under Order 21 Rule 16 C.P.C.

6. Thus, in the result, the order passed by the Court below is set aside. The revision is allowed. I.A.No. 4 is dismissed.


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