Chandra Reddy, C.J.
1. The question posed by this appeal is whether Order 21, Rule 16 C. P. C. is applicable to the assignment of a preliminary decree.
2. Umamaheswaram, J., before whom this appeal came up for hearing originally, ret erred it to a Bench, as he felt that there was a conflict of opinion between Ramanadhan v. Ramachandra, AIR 1926 Mad 1129 and Dhanapala Chettiar v. Krishna Chettiar, : AIR1955Mad165 which followed an earlier Bench decision in Venkatarama Ayyar v. Ramaswami Aiyer, ILK 44 Mad 539 : (AIR 1921 Mad 56).
3. The facts culminating in the appeal are shortly these: One Padala Seshamma instituted O. S. No. 226 of 1950 on the file of the Subordinate Judge's Court, Nellore, for a declaration of her half share in the estate of her deceased husband, Padala Narasimhulu Chetty, for an account of the profits as detailed in schedule A(1), for recovery of her half share in the share described in schedule B and for her half share in the granite quarry described in schedules E and C and for costs.
3a. A preliminary decree was passed declaring her right to a share in those properties.
4. It is unnecessary for us to go into the details of that decree for the purpose of this enquiry. Suffice it to say that without applying for the passing of final decree, Seshamma transferred her interest in the decree to the appellant. The appellant also, without making any application for the passing of final decree applied under Order 21, Rule 16 C.P.C. for recognition of the transfer and for execution of the preliminary decree.
5. A preliminary objection was raised before the trial court that a petition under Order 21, Rule 16 C. P. C. was not maintainable, that, in any event, the transfer was sham and nominal and that, therefore, the decree was unenforceable.
6. The trial court while over-ruling the objection as to the competence of the petition, dismissed it in the view that no consideration was paid by the appellant to his transferor and consequently he could not apply for execution of the decree.
7. The aggrieved trausferee-decree-holder i.e., the appellant, brought the matter in appeal to this Court and it was posted before Umamaheswaram, J.
8. The same objection, namely, that a petition under Order 21, Rule 16'C. P. C. could not be sustained, was raised before him. The learned Judge, as we have already stated, thought that there is a conflict between the decisions referred to above and referred the matter to a Bench.
9. Before we consider whether there is really any divergence of judicial opinion in that behalf, it is convenient to read Order 21, Rule 16 C. P. C. which is in these words:
'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 conditions as if the application were made by such decree-holder.'
10. It is manifest that this rule is applicable only to the case of execution of the decree by a transferee. In fact Order 21 in which this rule occurs bears only on execution of decrees and orders. Unless there is a decree which can be executed, Rule 16 cannot come into play. We are not here concerned with the remedies that are available to the assignee of a preliminary decree, the only point that calls for decision in this case being whether a person in the position of the appellant could invoke Order 21, Rule 16 C. P. C. Our answer is in the negative, as no final decree has been passed in this case.
11. We will next proceed to see whether there is any cleavage of judicial opinion in this regard. In AIR 1926 Mad 1129, the appellant was the transferee or the assignee of a preliminary decree (or partition of the share of the transferor in the family property but he took no steps to be impleaded in the suit. However after the final decree was passed, he applied to execute the final decree passed in favour of his assignors.
This application was opposed by the transferors on the ground that the assignment being only of the preliminary decree, the transferee could not apply to execute the final decree. This plea prevailed with the Bench consisting of Phillips and Madhavan Nair JJ. They observed that Order 21, Rule 16 C. P. C. applied only to execution of decree which has, as it is, been transferred to the person seeking execution, that since in that case what was transferred was a preliminary decree, the final decree could not be executed and that Rule 16 was clearly inapplicable.
12. 1955-1 Mad LJ 72: ((S) AIR lass Mad 165) did not touch this question. One of the problems that posed itself there was whether the heirs of one of the defendants who was held to be entitled to maintenance, could claim the amount ascertained to be duo and payable to her in the final decree proceedings. This question was answered in the affirmative. In that case, the third defendant who was declared to be entitled to maintenance at a particular rate, died after the passing of the preliminary decree and before the final decree. On her death her heirs claimed the amount that accrued due to their mother as ascertained in the final decree.
This claim of the heirs was opposed by the contesting defendants on the ground that on the death of the third defendant before the final decree was passed, the claim lapsed. It was this contention that was negatived. Mack and Krishnaswami Nayudu, JJ. ruled that the maintenance, though unascertained was transferable and heritable. They had not to consider whether to such a case O. 21, Rule 16 C. P. C. was applicable. The question raised in that case was stated by the learned Judges thus:
'The question is whether in such circumstances in case of tile death of the 3rd defendant, defendants 4 and 5 would not be entitled to claim as heirs the amount payable to the 3rd defendant after ascertainment,'
It is clear that they were not concerned with the problem which we are now required to solve, namely, whether Order 21 Rule 16 C. P. C. comes into play in the case of an assignment of a preliminary decree.
13. Nor does ILR 44 Mad 539 : (MR 1921 Mad 56) throw any light on this question. There, after the preliminary decree for partition, one of the sharers transferred the decree and the purchaser applied to be brought on record as the 'assignee of the decree-holder-sharer and also applied under Order 20, Rule 12 C. P. C. to have the mesne profits ascertained and decreed to him. It was contended on behalf of the judgment-debtors that there being no final decree the assignee could not file an application under Order 20 Rule 12, C. P. C. for ascertainment of mesne profits.
The learned Judges repelled this submission in the view that a suit for mesne profits partook more of the nature of a suit for accounts (along with which it is enumerated in the schedule to the Provincial Small Cause Courts Act) and that such a suit has under, ordinary circumstances some affinity to a suit for money had and received. That decision is not quite relevant in the consideration of the question whether Order 21, Rule 16 C. P. C. governs the transfer of a preliminary decree for partition. Thus we do not find any conflict of judicial opinion on the applicability of Order 21, Rule 16 C. P. C. to preliminary decrees. That Rule does not govern recognition of assignment of preliminary decrees.
14. In our opinion, the appellant has misconceived his remedies in applying for execution of the decree under Order 21 Rule 16 C. P. C. On this ground the petition should have been dismissed. This does not preclude the appellant from pursuing such remedies as are open to him in law. Any finding arrived at by the trial court on the merits cannot be regarded as a final one and that matter is set at large,
15. In the result, the appeal is dismissed with costs. The C. M. P. is not pressed and it is dismissed.