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Dost Muhammad Vs. Altaf HusaIn Khan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in17Ind.Cas.512
AppellantDost Muhammad
RespondentAltaf HusaIn Khan and ors.
Excerpt:
civil procedure code (act v of 1908), section 146 - representative of decree-holder--transferee of decree-holder interest during pendency of suit, whether can execute decree. - .....said became entitled to a part of the property. on february 21st, 1911, he transferred to one altaf husain all the property to which he was entitled under the compromise. altaf husain did not apply to the court to enter his name on the record in place of that of muhammad said and on march 25th, 1911, a decree was passed on the compromise in favour of muhammad said. altaf husain has now applied to execute the decree. the munsif rejected the application; but the district judge reversed his order. hence this appeal. there is no doubt that altaf husain ought to have taken steps to have his name entered in the record of the case. but it is urged on his behalf that he is the representative of muhammad said and that the district judge was right in regarding him as the transferee of the.....
Judgment:

Chamier, J.

1. One Muhammad Said sued for some immoveable property. On February 2nd, 1011, a compromise was arrived at according to which Muhammad Said became entitled to a part of the property. On February 21st, 1911, he transferred to one Altaf Husain all the property to which he was entitled under the compromise. Altaf Husain did not apply to the Court to enter his name on the record in place of that of Muhammad Said and on March 25th, 1911, a decree was passed on the compromise in favour of Muhammad Said. Altaf Husain has now applied to execute the decree. The Munsif rejected the application; but the District Judge reversed his order. Hence this appeal. There is no doubt that Altaf Husain ought to have taken steps to have his name entered in the record of the case. But it is urged on his behalf that he is the representative of Muhammad Said and that the District Judge was right in regarding him as the transferee of the decree. It seems to me that it is impossible to treat Altaf Husain as transferee of the decree for the document on which he relies was executed before the decree was passed. His learned Vakil tails back on Section 146 of the Code of Civil Procedure, which provides that where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. This section appears to me to be irrelevant. It was evidently intended to apply to the case of a representative who has succeeded to the position of the person whom he claims to represent. Altaf Husain has not acquired the rights of a decree-holder and I must hold that the application for execution cannot be maintained by him. I allow the appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs here and in the two lower Courts.


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