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K. Venkata Subrahmanyam and anr. Vs. Premier Bank of India, Nellore and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal Nos. 59 to 61 of 1963 and A.A.A.Os. Nos. 9 and 65 of 1962 and 16 to 18 of 1963
Judge
Reported inAIR1968AP94
ActsCompanies Act, 1913 - Sections 153A; Code of Civil Procedure (CPC), 1908 - Sections 11 and 232 - Order 21, Rules 11 and 16; Banking Companies Act, 1949 - Sections 6(2)
AppellantK. Venkata Subrahmanyam and anr.
RespondentPremier Bank of India, Nellore and ors.
Appellant AdvocateG. Venkatarama Sastry, ;A. Gangadhara Rao and ;P. Sitaramaraju, Advs.
Respondent AdvocateB. Manavala Choudri, Adv.
Excerpt:
.....as business transferred to corporation - only original decree holder entitled to execute same - decree passed in favour of bank and can be executed by it only. - - archiah, 1962-2 andh wr 65 =(air 1962 andh pra 497). 8. the contention of shri venkatrama sastry, is that that principle may hold good so far as the transfer is in writing but it cannot apply to a case where it is by operation of law. if those two conditions are satisfied, the decree may be executed in the same manner and subject to the same conditions as if the application were made by the decree-holder. we are, therefore, clear that the objection raised by the appellants that the bank can-not execute the decree does not bold good. this argument also depends on the question whether there was any transfer as such by..........under the indian companies act. by virtue of a resolution dated the 14th february, 1953, the bank transferred all its assets and liabilities relating to the chit-fund business to the corporation. this resolution had to be sanctioned by the high court under section 153-a of the indian companies act of 1913. the bank, therefore, filed o.p. no. 288 of 1953 in the high court of madras for approving the transfer. the high court of madras by its order dated 2-11-1983 approved the transfer. subsequently, the bank went into liquidation on 17-11-1958. but it appears that prior to the obtaining of the sanction from the high court, the bank had obtained certain decrees against the appellant and some others. in o.s. no. 92 of 1952 (out of which l.p.a. no. 59 of 1963 arises) the bank obtained a.....
Judgment:

Manohar Pershad, C.J.

1. L.P.As. Nos. 59 to 61 of 1963 arise out of C.M.A. Nos. 419 and 420 of 1960 and 45 of 1961 respectively, while C.M.S.A. Nos. 65 of 1962 and 16 to 18 of 1963 arise out of A.S. Nos. 70 and 174 of 1961 and 89 and 90 of 1962 respectively on the file of the District Court, Nellore. In all these matters the appellants are the judgment debtors. C.M.S.A. No. 9 of 1962 is on behalf of the decree-holder, which arises out of A.S. No. 272 of 1960 on the file of the Additional District Judge, Nellore.

2. We would first take up the L.P.As. and C.M.S.As. filed by the judgment-debtors.

3. The facts giving rise to these proceedings are: The Premier Bank of India, Ltd. (hereinafter referred to as the Bank), registered under the Companies Act of 1913, was carrying on both banking and chit fund business at its branch at Nellore. In 1953, the Reserve Bank of India intimated to the Bank not to carry on the chit-fund business as it was prohibited by Sub-section (2) of Section 6 of the Banking Companies Act (X) of 1949). Accordingly, the Bank thought that it could not carry on the chit hind business and so formed another company by name the Premier Chit Corporation Ltd. (hereinafter referred to as the Corporation) and got it registered under the Indian Companies Act. By virtue of a resolution dated the 14th February, 1953, the Bank transferred all its assets and liabilities relating to the chit-fund business to the Corporation. This resolution had to be sanctioned by the High Court under Section 153-A of the Indian Companies Act of 1913. The Bank, therefore, filed O.P. No. 288 of 1953 in the High Court of Madras for approving the transfer. The High Court of Madras by its order dated 2-11-1983 approved the transfer. Subsequently, the Bank went into liquidation on 17-11-1958. But it appears that prior to the obtaining of the sanction from the High Court, the Bank had obtained certain decrees against the appellant and some others. In O.S. No. 92 of 1952 (out of which L.P.A. No. 59 of 1963 arises) the Bank obtained a decree for Rs. 7,056 on 8-9-1953 in the Sub-Court, Nellore. O.S. No. 254 of 1952 was instituted by the Bunk in the District Munsif's Court Nellore (out of which L.P.A. No. 60 of 1963 arises) and a decree was passed in favour of the Bank on 18-7-1952 for a sum of Rs. 3,394. A third suit, O.S. No. 39 of 1950, was instituted by the Bank in the Sub-Court, Nellore (out of which L.P.A. No. 61 of 1963) and a decree for a sum of Rs. 9,206-11-8 was passed on 14-7-1950. O.S. No. 358 of 1952 was instituted by the Bank in the District Munsif's court, Nellore, out of which C.M.S.A. No. 65 of 1962 arises and a decree for a sum of Rs. 1,600 was passed in favour of the Bank on 31-7-1953. O.S. No. 155 of 1949 was instituted in the Sub-Court, Nellore, out of which C.M.S.A. No. 16 of 1963 arises and a decree for Rs. 16,000 was passed. O.S. No. 108 of 1950 was instituted in the District Munsif's Court, Nellore out of which C.M.S.A. No. 17 of 1963 and No. 18 of 1963 arise and a decree for Rs. 979-3-0 was passed. By virtue of the said decrees, the Bank filed various execution petitions and it is stated before us by Shri A. Gangadhara Rao, learned counsel for the decree-holders, that some monies were realised. When the present execution petitions were filed for executing the decrees, the judgment-debtors raised certain objections. Their objection was that after the order dated 2-11-1953 passed by the High Court in O.P. No. 288 of 1952 the Bank had no right to execute the decrees as the title, had vested in the Corporation. The execution Court rejected this contention In L.P.As. Nos. 16 to 18 of 1963, but accepted the contention in C.M.S.A. No. 65 of 1962. As against this decision of the executing Court, appeals were filed to this Court and as against the decision in C.M.As. appeals were preferred to the District Court. The District Court rejected these appeals. The High Court also rejected the appeals. Hence these appeals on behalf of the judgment-debtors.

4. In all these appeals, the main point urged by Shri Venkatarama Sastri, learned counsel for the judgment-debtors, is that after the order of the High Court of Madras dated 2nd November 1953 in O.P. No. 288 of 1953, the Bank had no right to execute the decrees as title had vested in the Corporation, In order to appreciate this contention of the learned advocate, we have to see the order passed by the High Court dated 2-11-1953, Ex. B-4. The order is as follows:--

' 1. That the scheme of arrangement proposed to be effected in pursuance of the resolution passed at the meeting of the shareholders and creditors of the company above named held on 14-2-1953 and set out in the schedule hereunder be and is hereby approved and confirmed.

2. That all the assets and liabilities of the company abovenamed relating to chit funds be and are hereby transferred to the new company 'The Premier Chit Corporation Limited, Madras' and that such assets and liabilities be and hereby declared to be vested in the said new company.

3. That a certified copy of this order be filed with the Registrar of Joint Stock Companies, Madras.***'

Shri Venkatarama Sastry relying on this portion of the order 'that all the assets and liabilities of the company abovenamed relating to chit funds be and are hereby transferred to the new company' contends that this order is clear to show that all the assets including the decree debts were also transferred to the Corporation. We are not prepared to agree with this contention of the learned counsel. No doubt in para 2, as contended by the learned counsel, there is the mention of all the assets and liabilities of the company being transferred to the Corporation; but it may be noted that along with this order, no schedule of the decree debts has been attached and it is common ground that by the time of this order, the Bank had already got about seven decrees as against the appellants and there is no mention of the transfer of these decrees also in favour of the Corporation. If these decrees were also transferred, the order would have been very specific. In the absence of any specific order, merely because in the second para of the order there is this mention that 'all the assets and liabilities of the company abovenamed relating to chit funds be and hereby transferred to the new company 'we cannot accept that the decrees also were transferred.' That the decrees were not transferred is evident from the subsequent order of the High Court dated 1-1-1962. This order was passed on an application filed by the Bank requesting the Court to amend the order and clarify the same by adding the following proviso in the said order :--

' Provided, however, that such assets so transferred and vested snail not include the decrees already passed before 2-11-1953 or claims pending in suits on that date.'

so that the said order after the amendment and clarification would read as follows:--

' That all the assets and liabilities as of the company abovenamed relating to chit funds be and are hereby transferred to the new Company, ' The Premier Chit Corporation, Ltd., Madras' and that such assets and liabilities be and are hereby declared to be vested in the said new company, provided, however, that such assets so transferred and vested shall not include the decrees already passed before 2-11-1953 or claims pending in suits on that date'. The Court accepted this petition, From this order it becomes clear that the decrees were not transferred to the Corporation.

5. The contention of Shri Venkatrama Sastry is that the order dated 1-1-1962 being behind their back, they cannot be bound by that order. This argument is devoid of force. The order was passed on the application filed by the Bank and the matter concerned the Bank and the Corporation. It had nothing to do with the judgment-debtors and the order sought was under Section 153-A, which also does not contemplate any notice to be given to the judgment-debtors. It was a matter inter se the Bank and the Corporation. We are, therefore, clear that there was no transfer of the decrees as such to the Corporation, In view of this, we think it is unnecessary to discuss the authorities cited by Shri Venkatarama Sastry in support of the contention that once rights have been transferred it is only the transferee that has to execute the decree and not the transferor.

6. It is further contended that if the Bank wanted to get an order from the Court, that could have been done only by another arrangement and not in the present form. We are unable to accept this contention. In the previous order there was no mention of the decrees and the Bank apprehending difficulty, filed a petition to clarify the order, which in our opinion, was proper.

7. Even if we assume for argument's sake that there was a transfer of the decrees to the Corporation, still that does not help the case of the appellants. Under Order 21, Rule 16, the executing Court has to execute the decree as it stands. It is only the decree-holder or the person whose name appears on the face of the decree that can execute it and the executing Court cannot record any other person as being entitled to execute the decree. The principle of Order 21, Rule 16 is that no one can execute the decree except the decree-holder or the person to whom the decree has been assigned in writing or by operation of law. Admittedly, in the instant case it is the name of the Bank that is shown as the decree-holder. Nowhere is there the mention of the Corporation. The question arises whether in the absence of the name of the Corporation being shown as the decree-holder, can the Corporation execute the decree. As stated earlier, since the name of the Corporation does not appear as the decree-holder, the executing Court cannot allow the Corporation to execute the decree. It is only the original decree-holder whose name appears on the face of the decree that can execute the decree. Order 21, Rule 16 is for the benefit of the transferee. It is for the transferee to bring to the notice of the Court the fact of the transfer arid execute the decree and unless he is so brought, the original decree -holder, in our opinion, is entitled to execute the decree. We may is this connection refer to the cases of Kamrao v. Ranganayakulu, : AIR1964AP1 (FB) and Sitharamiah v. G. Archiah, 1962-2 Andh WR 65 = (AIR 1962 Andh Pra 497).

8. The contention of Shri Venkatrama Sastry, is that that principle may hold good so far as the transfer is in writing but it cannot apply to a case where it is by operation of law. In this connection the learned counsel has placed his reliance on the full decision of this Court in Krishna Somayajulu v. Annappa, 1957-1 Andh WR 83 = (AIR 1957 Andh Pra 66) (FB). This decision, in our opinion, does not help the argument of the learned counsel. On the other hand, it supports the view taken by the lower Courts. The following passage at p. 85 (of Andh WR) = (at pp.67-68 of AIR) pay be referred to at this stage :--

'The principle of Order 21, Rule 16, is that no one can execute a decree except the decree-holder or the person to whom the decree has been transferred by assignment in writing or by operation of law. The rule contemplates two cases of transfer: (1) by assignment in writing and (2) by operation of law. If the transfer is by assignment in writing, then it is obligatory upon the Court to give notice of the applications to the transferor and the judgment-debtor, and the decree cannot be executed until the Court has heard their objections (if any) to the execution. A 'transfer by operation of law' means a transfer on death or by devolution or by succession, The legal representative, who is a transferee by operation of law, has to make an application for execution under Order 21, Rule 16. Order 21, Rule 16 which entitles a legal representative to apply for execution does not require an independent application for recognition as such. The rule only enjoins the transferee by operation of law to make (1) an application for execution, (2) to the Court which passed the decree. If those two conditions are satisfied, the decree may be executed in the same manner and subject to the same conditions as if the application were made by the decree-holder.'

9. Thus, it would appear that the Full Bench also has taken the view that even in the case of transfer by operation of law, it is necessary that an application should be made by such person under Order 21. Rule 16. Tin's view of ours gels further support from the cases of Jasoda Deye v. Kirtibash Das, (1891) ILR 18 Cal 639 and Kirtilal Jivabhai v Chunilal Manilal, AIR 1946 Bom 27 In the former case it has been held: 'The person appearing on the face of the decree as the decree-holder is entitled to execution; unless it be shown by some other person, under Section 232 of the Civil Procedure Code (which corresponds to Order 21, Rule 16) that he has taken the decree-holder's place, and in the latter case it has been held as follows:--

'O. 21, Rule 16, contemplates two cases of a transfer of a decree--One by assignment in writing and the other by operation of law. If the transfer is by assignment in writing, then it is obligatory upon the Court to give a notice of the application to the transferor and the judgment-debtor and the decree cannot be executed until the Court has heard their objections (it any) to its execution. The application has got to be made to the Court which passed the decree and the application must be an application made under Order 21, Rule 16. All that the rule requires, is that the transferee must apply for execution to the Court which passed the decree. Two applications are not necessary, one under Order 21, Rule 16, and the other under Order 21, Rule 11, although two applications may be necessary and may De desirable where the Court that passed the decree is not executing the decree and the decree has been transferred to another Court for execution.'

10. There is yet another hurdle in the way of the judgment-debtors. It is common ground that earlier execution petitions were led by the Bank and some amounts were paid by the judgment-debtors. But it appears that at that stage the present judgment-debtors did not raise the plea that the Bank was not competent to execute the decrees and it was only the Corporation that could execute the decrees. When such a plea was not taken at the earlier stage, the judgment-debtors cannot be permitted to take this plea at the subsequent stage of the execution, proceedings and would he hit by the principle of constructive res judicata. The contention of Shri Venkatrama Sastry is that the judgment-debtor had no knowledge at that time of the first order of the High Court approving the arrangement. This plea cannot be accepted for the simple reason that the judgment-debtors are also shareholders of the Bank, and they would, therefore, be in the full know of the things. We are, therefore, clear that the objection raised by the appellants that the Bank can-not execute the decree does not bold good.

11. It is next urged by Shri Venkatrama Sastry, learned Counsel for the appellants, relying on the case of Sahayanidhi (Virudhunagar), Ltd. v. Subrahmanya Nadar, : AIR1951Mad209 (FB), that the present execution petition by the Bank is not maintainable. This argument would arise only if the; case of the appellants is accepted that the Bank had transferred the present decrees also to the Corporation. As discussed above, the Bank did not transfer these decrees to the Corporation and when there was no transfer, the Bank has the right to execute the decrees as the decree-holder. In the view we are taking, we need not discuss the case cited by the learned counsel.

12. Yet, another argument that was advanced was that hi the case of transfer by operation of law, the transferor ceases to have any right and he cannot deal with the property in any manner. This argument also depends on the question whether there was any transfer as such by the Bank in favour of the Corporation and la view of the above discussion this argument also does not hold good.

13. In the result we do not find any force In the L.P.As. and C.M.S.As. filed by the judgment-debtors and they are, therefore, dismissed with costs in the L.F.As. only. There will be no order as to costs in the C.M.S.A.

14. C.M.S.A. No. 9 of 1962.--We nowturn to G.M.S.A. No. 9 of 1962. In the viewwe have taken in the L.P.As. and C.M.S.As. filedon behalf of the judgment-debtors, viz., thatthe plea of the judgment-debtors that the Bankis not competent to execute the decree cannot beaccepted, this appeal has to be allowed, becausethe lower Court in this case had taken the viewthat the decree was not executable. This appeal is allowed with costs and the order of theCourt below is set aside.


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