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Mazhar HusaIn Vs. Musammat Amtul Bibi and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All101; 66Ind.Cas.679
AppellantMazhar Husain
RespondentMusammat Amtul Bibi and anr.
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 16 - 'transfer by assignment in writing or by operation of law,' meaning of--mortgage, whether included. - - 1. the facts of the case out of which this appeal arises are stated clearly and succinatly in the order of the second additional district judge......amount due on a mortgage executed by the lady in favour of the appellant. under this mortgage the lady transferred to him her rights as a decree holder. he has not yet executed his decree, and the decretal right of the lady has not so far been sold to any one. he maintains that he is entitled to execute the decree for dower against the third party without taking further steps in the matter. the point for decision is, whether the decree for dower has been transferred to him by an assignment in writing or by operation of law. we are of opinion that, so far, it has not been transferred to anybody by assignment in writing or by operation of law within the meaning of the words in order xxi, rule 16. there is considerable distinction between the transfer of rights as a decree-holder by.....
Judgment:

1. The facts of the case out of which this appeal arises are stated clearly and succinatly in the order of the Second Additional District Judge. The appellant has obtained a decree under Order XXXIV, Rule 5, by which he is at liberty to bring to sale the decretal right of Musammat Umtan Nissa in a money decree for dower due to her against a third party, in satisfaction of the amount due on a mortgage executed by the lady in favour of the appellant. Under this mortgage the lady transferred to him her rights as a decree holder. He has not yet executed his decree, and the decretal right of the lady has not so far been sold to any one. He maintains that he is entitled to execute the decree for dower against the third party without taking further steps in the matter. The point for decision is, whether the decree for dower has been transferred to him by an assignment in writing or by operation of law. We are of opinion that, so far, it has not been transferred to anybody by assignment in writing or by operation of law within the meaning of the words in Order XXI, Rule 16. There is considerable distinction between the transfer of rights as a decree-holder by mortgage and a transfer by assignment in writing or by operation of law of the decree itself. (sic)In these circumstances, we can only read the words 'transfer by assignment in writing or by operation of law' in Order XXI, Rule 16, to mean a transfer of all the transferor's interests in the decree. Unless the interests of the transferor in the decree are exhausted there is not, in our opinion, such a transfer' as Order XXI, Rule 16 contemplates.

2. For the above reasons, we dismiss this appeal with coats including in this Court-fees on the higher scale.


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