Skip to content


Ram Chandra Naik Kalia Vs. Abdul Hakim and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1913)ILR35All204
AppellantRam Chandra Naik Kalia
RespondentAbdul Hakim and ors.
Excerpt:
civil procedure code (1908), order xxi, rule 16 - execution of decree--decree for money and costs of suit--transfer of the decree as to costs merely. - - in so far as the construction of the decree is concerned, in our opinion the district judge is perfectly correct. rule 16 of order xxi lays down distinctly that in cases of transfer the decree can be executed in the same manner and subject to the same condition as if the application were made by such decree-holder......and thirdly, that the appellant was not in law entitled to apply as a transferee of a part of the decree for execution of that portion only. the transferee has come here on appeal, and it is urged that the district judge has misconstrued the decree and that he has erred in law in holding that the appellant as a transferee of a part of the decree could not put that portion of the decree into execution. in so far as the construction of the decree is concerned, in our opinion the district judge is perfectly correct. as regards the second point, assuming that there is nothing in law to prevent the transfer of a portion of the decree, and assuming that the transferee can apply for the execution of the whole decree, in the present case the transferee is not entitled to apply for execution of.....
Judgment:

Tudball and Muhammad Rafiq, JJ.

1. This appeal arises out of the following circumstances: Musammat Najm-un-nissa, the widow of one Maulvi Farzand Ali, brought a suit against the other heirs of her deceased husband to recover a sum of Rs. 97,500 due to her as dower. She also asked for the costs of her suit. The District Judge decreed the claim in her favour. The judgment ends as follows: 'I, therefore, decree the claim in full with costs and future interest at 6 per cent. per annum. The decree will be executed against the assets of Maulvi Farzand Ali, and not against the personal property of the defendants.' This was also entered in the decree. The defendants appealed to this Court. But the appeal was dismissed with costs. There was no order in the decree of this Court as to the realization of the costs of this Court from the assets of the deceased. Musammat Najm-un-nissa has transferred to the present appellant her right to recover costs as against her judgment-debtors. The present appellant applied to the District Judge for execution of so much of the decree as related to costs. Objection was taken, first of all as to the right of the appellant as transferee of a part of the decree to put a portion of the decree into execution, and next it was also objected that the costs could only be recovered from the assets of the deceased Farzand Ali. The lower court has held on a construction of the decrees that the costs incurred by the plaintiff in the High Court are recoverable from the persons and other property of the defendants; that the costs incurred in the court of first instance are only recoverable from the assets of the deceased, and thirdly, that the appellant was not in law entitled to apply as a transferee of a part of the decree for execution of that portion only. The transferee has come here on appeal, and it is urged that the District Judge has misconstrued the decree and that he has erred in law in holding that the appellant as a transferee of a part of the decree could not put that portion of the decree into execution. In so far as the construction of the decree is concerned, in our opinion the District Judge is perfectly correct. As regards the second point, assuming that there is nothing in law to prevent the transfer of a portion of the decree, and assuming that the transferee can apply for the execution of the whole decree, in the present case the transferee is not entitled to apply for execution of a part of the decree, as the original decree-holder herself could not have done so. The decree appears to us to be one and indivisible, for recovery of the dower plus the costs incurred in the suit. We do not think that the bare fact of a portion of the sum decreed being recoverable only from the assets of the deceased makes the decree one which could be divided into two separate decrees with regard to which the decree-holder will be entitled to execute separately. Rule 16 of Order XXI lays down distinctly that in cases of transfer the decree can be executed in the same manner and subject to the same condition as if the application were made by such decree-holder. In our opinion the application was properly disallowed and we dismiss the appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //