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S. Harjang Singh Vs. Gowardhan Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 34 of 1948
Judge
Reported inAIR1952P& H183
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(3) and 49
AppellantS. Harjang Singh
RespondentGowardhan Das and ors.
Appellant Advocate K.L. Gosain,; S.D. Bahri and; K.C. Nayyar, Advs.
Respondent Advocate D.K. Mahajan and; D.N. Awasthi, Advs.
DispositionAppeal dismissed
Excerpt:
.....226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - clearly, therefore, equities arise in favour of gowardhan das, and when the payment made by the judgment-debtor to bishen singh and harnam singh was a payment which to the knowledge of the judgment-debtor was made to persons not then entitled to any payment, for the court had just held the assignment in their favour to be inoperative, any equities in favour of the judgment-debtor must in my opinion be subordinate to the equities in favour of gowardhan das......shuja-ud-din obtained a final decree on the foot of a mortgage. on the 18th of august 1943 the decree-holder executed an unregistered document purporting to assign the decree in favour of two persons biahen singh and harnam singh, and on the same day bishen singh and harnam singh executed an unregistered document purporting to assign the decree to one gowardhan das. gowardhan das subsequently applied under order xxi, rule 16 of the code of civil procedure to execute the decree but his application was rejected on the ground that the decree being a mortgage decree could not be assigned by an unregistered document. on the same day as the order of the court dismissing the application of gowardhan das under order xxi, rule 16, bishen singh and harnam singh are said to have accepted rs......
Judgment:

Weston, C.J.

1. This is a Letters Patent Appeal from a Judgment of Mr. Justice Falshaw given on the 20th of May 1948 in Execution Second Appeal No. 2348 of 1945.

2. The facts of the case are these. On the 6th of July 1933 one Major Shuja-ud-Din obtained a final decree on the foot of a mortgage. On the 18th of August 1943 the decree-holder executed an unregistered document purporting to assign the decree in favour of two persons Biahen Singh and Harnam Singh, and on the same day Bishen Singh and Harnam singh executed an unregistered document purporting to assign the decree to one Gowardhan Das. Gowardhan Das subsequently applied under Order XXI, Rule 16 of the Code of Civil Procedure to execute the decree but his application was rejected on the ground that the decree being a mortgage decree could not be assigned by an unregistered document. On the same day as the order of the Court dismissing the application of Gowardhan Das under Order XXI, Rule 16, Bishen Singh and Harnam Singh are said to have accepted Rs. 4,000/-from the judgment-debtor in lull and final settlement' of the decree. Ten days later the original decree-holder Major Shuja-ud-Din made a further transfer of the decree in favour of Bishen Singh and Harnam Singh, this time by a registered document, and on the same day Bishen Singh and Harnam Singh in turn transferred the decree in favour of Gowardhan Das also by a registered document. Gowardhan Das then filed a second application under Order XXI, Rule 16, which was resisted by the judgment-debtor on various grounds, the principal of which was that the decree had been fully discharged by the payment of Rs. 4,000/-received by Bishen Singh and Harnam Singh on the 22nd of July 1944.

3. The Executing Court held that as there was no valid transfer of the decree subsisting in favour of Bishen Singh and Harnam Singh on the 22nd of July 1944 there had been no satisfaction of the decree. The application of Gowardhan Das under Order XXI, Rule 16, therefore was allowed. In appeal to the District Court this order was reversed by the District Judge who held that Gowardhan Das was not a valid transferee of a subsisting decree. In second appeal to the High Court of Lahore a remand order was made for determination whether the payment of Rs. 4,000/- on the 22nd of July 1944 had in fact been made. The trial Court on remand held that this payment had been made. The matter again went to the District Court and the District Judge in his report supported the finding of his predecessor. The appeal then came before Mr. Justice Falshaw who held that the findingof the Executing Court that no valid assignment of the decree subsisted in favour of Bishen Singh and Harnam Singh on the date on which they gave the judgment-debtor his discharge was correct. He, therefore, allowed the appeal and restored the order of the Executing Court,

4. Before us it has been argued that Section 49 of the Code of Civil Procedure has application to this case. It is claimed that by reason of the payment of Rs. 4,000/- which has been found to have been made to them Bishen Singh. & Harnam Singh who had acquired a valid title to the decree by the registered document of the 1st of August 1944 were not entitled in equity to execute the decree and their transferee Gowardhan Das was subject to the equities held by the judgment-debtor against Biahen Singh and Harnam Singh and equally was debarred from executing the decree.

5. Section 49 provides:

'Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder.'

6. 'Decree-holder' is defined by Section 2(3) of the Code as 'any person in whose favour a decree has been passed or an order capable of execution has been made.' 'Decree-holder' does not include 'transferee of a decree' as it did under the definition of the Code of 1882. Section 49 is a reproduction of Section 233 of the Code of 1882. Apart from the fact that a decree-holder cannot now be said to include a transferee the matter is placed beyond question by the adjective 'original' appearing in Section 49. It is clear that Section 49 cannot avail a judgment-debtor to claim equities not only against the original decree-holder but against a transferee from the original decree-holder.

7. On the argument that equities should .e enforced apart from Section 49, Gowardhan Das is a transferee from Bishen Singh and Harnam Singh. Issue No. 3, disposed of by the Executing Court in its judgment, dated the 18th of May 1945 was in these terms:

'Whether the said assignment of the decree infavour of Gowardhan Das is invalid, illegal andwithout consideration?'

and the finding on this issue was against the judgment-debtor. I must take it, therefore, as a fact found that there was consideration for the valid transfer of the decree by Bishen Singh and Harnam Singh in favour of Gowardhan Das. Clearly, therefore, equities arise in favour of Gowardhan Das, and when the payment made by the judgment-debtor to Bishen Singh and Harnam Singh was a payment which to the knowledge of the judgment-debtor was made to persons not then entitled to any payment, for the Court had just held the assignment in their favour to be inoperative, any equities in favour of the judgment-debtor must in my opinion be subordinate to the equities in favour of Gowardhan Das. Dishonesty may have been shown by Bishen Singh and Harnam Singh but the judgment-debtor must take his own remedy to recover from them and the rights of Gowardhan Das must be upheld. I, think, therefore, the decision of the learned Single Judge was correct and I would dismiss this appeal with costs.

Harnam Singh, J.

8. I agree.


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