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Banke Behari Lal Vs. Raghubar Dayal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1930All380; 122Ind.Cas.189
AppellantBanke Behari Lal
RespondentRaghubar Dayal
Excerpt:
.....of decree--assignee not brought on record--continuation of appeal and second appeal by decree-holder--application for execution by assignee--limitation. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the..........brought on the record within three months the suit had abated. this objection was overruled and a final decree was passed on 8th april 1922. the surviving judgment-debtors appealed to the lower appellate court. while that appeal was pending the decree-holder babu ram on 7th october 1922, assigned his rights and interests in the decree to raghubar dayal. raghubar dayal made no attempt to have his name brought on the record in the appeal. the decree-holder alone contested it. the lower appellate court decreed the appeal against the decree-holder and presumably modified it so far as the deceased judgment-debtor was concerned. the decree-holder preferred a second appeal to the high court which was ultimately allowed and on 20th february 1925, the final decree in the form in which it had.....
Judgment:

Sulaiman, J.

1. This is an execution second appeal by the judgment-debtor arising out of a suit for sale. After the preliminary decree for sale was passed one of the judgment-debtors Duli Chand died. An objection was raised on behalf of the other judgment-debtors that his heirs not having been brought on the record within three months the suit had abated. This objection was overruled and a final decree was passed on 8th April 1922. The surviving judgment-debtors appealed to the lower appellate Court. While that appeal was pending the decree-holder Babu Ram on 7th October 1922, assigned his rights and interests in the decree to Raghubar Dayal. Raghubar Dayal made no attempt to have his name brought on the record in the appeal. The decree-holder alone contested it. The lower appellate Court decreed the appeal against the decree-holder and presumably modified it so far as the deceased judgment-debtor was concerned. The decree-holder preferred a second appeal to the High Court which was ultimately allowed and on 20th February 1925, the final decree in the form in which it had been passed by the trial Court was restored. Raghubar Dayal had not been made a party either in the appeal before the lower appellate Court or in the second appeal in the High Court.

2. On 13th March 1926, Raghubar Dayal applied to execute the decree and was met with the objection that his application was barred by time. Both the Courts below have held in favour of the decree-holder and have allowed the application.

3. It seems to me that the application cannot be held to be barred by time. No doubt when the decree was assigned to Raghubar Dayal in October 1922, he might have applied to have his name brought on the record in the appeal or even ignoring the appeal he might have applied for execution of the original decree. But after the decree was modified by the lower appellate Court it would have been difficult for him to apply to execute the decree in its original form.

4. After the interest of the decree-holder in a decree which is the subject-matter of an appeal has been assigned to a third party it is not absolutely necessary for the assignee to have his name brought on the record in place of the decree-holder, if he is satisfied that his rights will be sufficiently protected by assignor. The language of Order 22(1) Rule 10, Civil P.C., itself indicates that it is only by the leave of the Court that the proceedings can be continued by or against the person to or upon whom the interest has devolved. Similarly Order 21, Rule 16, Civil P.C. would also indicate that it is open to the transferee to apply for the execution of the decree. The Limitation Act proscribes no special period for an application by a transferee of the decree to be brought on the record (27 C.W.N. 710). In the absence of his name, the proceedings can be continued as before by the decree-holder in spite of the assignment. If the decree which has been transferred is ultimately upheld the assignee is entitled to claim the benefit of it. It is quits clear that it is the decree which is ultimately passed in the suit which is the final decree in the case and in which the original Court's decree comes to be merged. An assignee of the decree-holder cannot be treated as a perfect stranger but must be deemed to be fully represented through the decree-holder. It is also clear that while an appeal is pending the rights of the judgment-debtor appellant cannot be prejudiced by the mere fact that the respondent to the decree has chosen to transfer his rights and interests in the decree during the pendency of the appeal. Even though Section 52 T.P. Act, would not apply to the case of the transfer of a decree which is not an immovable property, the principle underlying that section would, in my opinion be applicable and the more fact that an assignment has been made would not prevent the decree-holder from prosecuting the proceedings till its final conclusion.

5. This view finds support from the case of Ponnusami Pillai v. Chidambaram Chettiar [1918] 35 M.L.J. 294 whore it was pointed out that an assignment of a decree is really an assignment of the interest of the decree holder in the decree as may be finally determined. The only feature which distinguishes the present case from that case is that there the assignee of the decree had actually been brought upon the record in the appeal.

6. I would therefore dismiss this appeal.

Sen, J.

7. I concur. In view of the fact that the point raised in this appeal is not covered by any clear authority I should like to add a few words.

8. On 4th August 1917, a preliminary decree was obtained against a number of persons including one Duli Chand. Duli Chand died and no application was made for the substitution of his heirs on the record within the statutory period. Sometime before April 1922, an application was made for the preparation of a final decree. This application was resisted on the ground that the decree-holder had lost his right to a final decree by reason of Duli Chand's legal representatives not having been brought on the record within three months of the date of Duli Chand's death. This plea was overruled by the final Court and a final decree for sale was passed on 8th April. 1922. The judgments-debtor appealed. During the pendency of the appeal, the decree-holder on or about 7th October 1922, assigned the decree to Raghubar Dayal, the respondent. On 8th November 1922 the appeal was decreed. We have not got the copy of the order passed by the lower appellate Court but presumably the order was to the effect that the suit had abated in part qua the legal representative of the deceased judgment-debtor Duli Chand. The decree-holder appealed to this Court. On 20th February 1925, the appeal was allowed and the decree of the trial Court was restored.

9. Raghubar Dayal, the assignee of the decree was not a party to any of the proceedings which have been referred to above.

10. On 13th March 1926, Raghubar Dayal applied for the execution of the decree and was met with the plea that the application was barred by time. This plea has been overruled by both the Courts below.

11. In order to appreciate the point of limitation raised in this appeal, we have got to consider the scope and legal effect of the assignment of the decree in favour of Raghubar Dayal of 7th October 1922. What was transferred was not the decree itself but the interest of the decree-holder. This interest had not become statute-barred Under Order 22, Rule 10, Civil P.C., the assignee was not bound to apply for the substitution of his name in the decree and the language of Order 22, Rule 10, 01. (l) Civil P. C, is indicative of the fact that the original decree-holder might continue the proceedings for the benefit of himself or any other person on whom the interest has devolved by substitution or by assignment. No special or fixed period of limitation has been prescribed in the Limitation Act for the substitution of names in favour of the assignee This fact also would suggest that the original decree-holder was entitled to continue the proceedings for the benefit of himself and his assignee. Between 8th November 1922, and 20th February 1925, there was no decree capable of execution. It was not till by the order of this Court that the original decree dated 8th April 1922, was restored and revived. It is an elementary principle of law that time cannot run against the person who is incapable of acting. It is unnecessary to invoke the aid of Section 52 T.P. Act, but I am in agreement with my learned colleague that the principle underlying the said section would suggest that the assignee is under the circumstances protected and is entitled to claim the benefit of the decree which was eventually restored by the order of this Court dated 20th February 1925. I would therefore dismiss the appeal.


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