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Chinnan Kesavan Vs. Gouri Amma - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 349 of 1956 (T)
Judge
Reported inAIR1959Ker180
ActsCode of Civil Procedure (CPC) , 1908 - Sections 146 - Order 21, Rule 16
AppellantChinnan Kesavan
RespondentGouri Amma
Appellant Advocate N. Sankara Iyer, Adv.
Respondent Advocate N. Kanakadas, Adv. for; S. Easwara Iyer, Adv.
DispositionAppeal allowed
Cases ReferredDost Mohammad v. Altaf Husain
Excerpt:
.....lower court held that there has been no valid assignment of decree and assignee is not entitled to execute decree - assignee challenged judgment - it was expressly stated in deed of assignment that assignee was entitled to get himself impleaded as additional plaintiff in suit and to continue suit to its logical termination - therefore appellant is a person claiming under decree-holder and entitled to all benefits under decree - appellant is entitled under section 146 to execute decree and reap its benefits. - - the question was whether the company was entitled to execute the decree by virtue of the assignment that bad already been obtained from the plaintiff firm. in that situation the person so becoming the owner of the decree may well be regarded as a person claiming under the..........a transferee of an equity of redemption of an item of immoveable property is not entitled to execute a decree for redemption obtained in respect of that property by the transferor.this decision was followed in the other case where also it was held that a transfer of property which is the subject-matter of the suit, will not make the transferee an assignee of the decree which is subsequently passed in the suit, so as to entitle him to apply for execution of the decree under order xxi,rule 16 c. p. c. in both these decisions the question whether, apart from the provisions of order xxi, rule 16, a transferee of the rights of a plaintiff in a suit is not entitled to execute the decree that may be subsequently passed in that suit, does not appear to have been considered. in fact, the.....
Judgment:

Sankaran, J.

1. The dispute as to the right to execute the decree in O. S. 195/1950 on the file of the Nedumangad Munsiffs Court has given rise to this Second Appeal. The properties involved in the suit belonged to the original plaintiff and, as the owner of the equity of redemption of these properties, he instituted the suit for redeeming the properties from the defendant on payment of the redemption price due to the defendant. During the pendency of that suit, the plaintiff assigned all his rights in the equity of redemption of the properties, in favour of the appellant and directed him to get recovery of possession of the properties from the defendant on payment of the redemption price that may be found to be due to them.

There was also a direction in the deed of assignment that the assignee may get himself impleaded as additional 2nd plaintiff in the suit' and carry on further proceedings towards redemption of the mortgage and recovery of possession of the properties. However, the assignee did not get himself impleaded as the additional 2nd plaintiff at the trial stage of the suit. Subsequent to the passing of the decreein the suit, a joint execution application was filed by the original plaintiff and his assignee on 20-1-1953 (E. P. No. 26 of 1953). In that execution petition it was stated that the assignee, who is the present appellant, had become the owner of the decree and that i.e. may therefore be impleaded as the additional 2nd plaintiff and allowed to execute the decree. This petition was opposed by the defendant on the ground that there has not been a valid transfer of the decree as contemplated by Order XXI, Rule 16, C. P, C., and that therefore the first plaintiff's assignee cannot be allowed to execute the decree.

The execution court overruled this objection and held that the joint execution application filed by the original plaintiff and his assignee is in itself sufficient to operate as an assignment of the decree in favour of the present appellant and that he is entitled to proceed with the execution. On appeal by the defendant, the lower appellate court came to a different conclusion and held that there has been no valid assignment of the decree and that the first plaintiff's assignee is not entitled to execute the decree. The assignee has come up in Second Appeal challenging the correctness of the view taken by the lower appellate court.

2. The original plaintiff instituted the suit for recovery of possession of the properties on redemption of the mortgage in favour of the defendant on 1-4-1950. Subsequently all his rights in the equity of redemption of the properties were assigned by him in favour of the present appellant on 16-10-1950. The suit was pending even then and it was decreed only on 27-11-1951. Since the decree had not come into existence on the date of the assignment in favour of the appellant, it is obvious that the assignment could not be of the rights under the decree.

There is also no specific agreement in the deed of assignment to transfer the rights under the decree that may be subsequently passed. What is stated in the deed of assignment is that all the rights of the assignor in respect of the equity of redemption of the properties, including the right to prosecute the suit and to get recovery of possession of the properties from the defendant, have been transferred to the assignee. Such being the nature of the assignment, it cannot be said that under that document the interest of the decree-holder in the decree was transferred by assignment in writing or by operation of law, within the meaning of Order XXI, Rule 16, C. P. C.

It is mainly for this reason that the lower appellate court came to the conclusion that the assignee of the original plaintiff is not entitled to execute the decree in the case. The decisions in Lekshmi Pillai Chempakakutty v. Rajaian Nadar 1951, Ker LT 787 : (AIR 1952 Trav-Co. 254) and in Oommen Chacko v. Avira Varghese, 1952 Ker. LT 334 : (AIR 1952 Trav-Co. 555) are no doubt in support of the view taken by the lower appellate court. In the first of these cases it was held that the transferee of an immovable property is not a transferee of a decree in respect of the property within the meaning of Order XXI, Rule 16, C. P. C., and consequently a transferee of an equity of redemption of an item of immoveable property is not entitled to execute a decree for redemption obtained in respect of that property by the transferor.

This decision was followed in the other case where also it was held that a transfer of property which is the subject-matter of the suit, will not make the transferee an assignee of the decree which is subsequently passed in the suit, so as to entitle him to apply for execution of the decree under Order XXI,Rule 16 C. P. C. In both these decisions the question whether, apart from the provisions of Order XXI, Rule 16, a transferee of the rights of a plaintiff in a suit is not entitled to execute the decree that may be subsequently passed in that suit, does not appear to have been considered. In fact, the real scope of Section 146 of C. P. C., was not considered in all its implications in either of the above-mentioned cases.

In the first of those cases, reference was made to the decision in Mahanandi Reddi v. Venkatappa AIR 1942 Mad 21 where the scop of Section 146 had been considered and discussed. All the same, it was said that that case was distinguishable on facts and, as such, the principle enunciated in tnat case could not govern the case in 1951 Ker LT 787 : (AIR 1952 Trav-Co. 254). It appears to us that in the case of a transfer effected prior to the passing of the decree in the suit, the right of the transferee to execute the decree has to be examined in the light of the provision contained in Section 146 of C. P. C. even apart from the provisions of Order XXI, Rule 16. Section 146 is much wider in its scope. It runs as follows :

'Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or application may be made by or against any person claiming under him.'

It is significant to note that while Order XXI, Rule 18 is confined to application by a person who has obtained the interest of a decree-holder by means of an assignment in writing or by operation of law Section 146 is couched in a much wider language so as to enable any person claiming under another to maintain an application which such other person could have made. Thus a person who could properly claim rights under a decree-holder, can invoke the aid of Section 146 and file an application for execution of a decree even though his position may not be that of a transferee of the rights under the decree as contemplated under Order XXI, Rule 16. This was the view taken in AIR 1942 Mad 21.

The correctness of the view taken in that case was subsequently affirmed by the Supreme Court in Jugalkishore v. Raw Cotton Co. Ltd. (S) AIR 3955 SC 376. That was a case where, during the pendency of a suit instituted by a firm for recovery of certain debts due to the firm from another individual, the firm assigned all their rights in respect of such debts to a limited company. However this company did not get themselves impleaded as additional plaintiffs in the suit, with the result that the decree happened to bo passed in favour of the firm itself. The question was whether the company was entitled to execute the decree by virtue of the assignment that bad already been obtained from the plaintiff firm.

On a consideration of the nature of the assignment in favour of the company, it was held that the company could not claim to have obtained the rights under the decree by an assignment in writing or by operation of law and that therefore the company could not apply for execution under Order 21, Rule 16. Then the further question whether the execution petition filed by the company could be sustained under Section 146 C. P. C. was examined. The following observations made at pp. 393 and 39-1 of the report by His Lordship S.R. Das, J., (as he then was) in the course of his decision of the question may be usefully extracted in this connection :

'There are two questions to be considered before the section may be applied, namely : (1) whether the Code otherwise provides and (2) whether the respondent company can be said to be persons claiming under the decree-holder. As regards (1) it is saidthat Order 21, Rule 16 specifically provides for application for execution by a transferee of decree and, therefore, a transferee of decree cannot apply under Section 140 and must bring himself within Order 21, Rule 16. This is really begging the question. Either the respondent company are transferees of the decree by an assignment in writing or by operation of law, in which case they fall within Order 21, Rule 16, or they are not such transferees, in which event they may avail themselves of the provisions of Section 146 if the other condition is fulfilled. There is nothing in Order 21, Rule 16 which expressly or by necessary implication, precludes a person who claims to be entitled to the benefit of a decree under the decree-holder but does not answer the description of being the transferee of that decree by assignment in writing or by operation of law, from making an application which the person from whom be claims could have made -- A person may conceivably become entitled to the benefits of a decree without being a transferee of the decree by assignment in writing or by operation of law. In that situation the person so becoming the owner of the decree may well be regarded as a person claiming under the decree-holder and so it has been held in Sitaramaswami v. Lakshmi Narasamma, AIR 1919 Mad 755 (2) although in the earlier case of Dost Mohammad v. Altaf Husain, 17 Ind Cas 512 (All) it was held otherwise. The case of AIR 1942 Mad 21 also held that the provisions of Order 21. Rule 16 did not prevent execution of the decree under Section 146. In that case it was held that the appellant could not execute the decree under Order 21, Rule 16 but ha could execute the same under Section 146. The main thing to ascertain is as to whether the respondent company had any right, title or interest in the decree and whether they can be said to be persons claiming under the decree-holder.......... ....

They had undoubtedly by the document of 7-2-1949, obtained a transfer of the debt which was the subject-matter of the then pending suit. This transfer under the Transfer of Properly Act, carried all the legal incidents and the remedies in relation to that debt. The transferors no longer had any right, title or interest in the subject-matter of the suit.

After the transfer it was the respondent company which had the right to continue the suit and obtain a decree if the debt was really outstanding. They however did not bring themselves on the record as the plaintiffs in the place and stead of the transferors but allowed the latter to proceed with the suit. The transferors therefore proceeded with the suit although they had no longer any interest in the debt which was the subject-matter of the suit and which had been transferred by them to the respondent company.

In the premises, in the eve of the law, the position of the transferors vis-a-vis the respondent company, was nothing more than that of 'benamidars' for the respondent company and when the decree was passed for the recovery of that debt it was the respondent company who were the real owners of the decree. As between the respondent company and the transferors the former may well claim a declaration of their title. Here there is no question of transfer of the decree by the transferors to the respondent company by assignment of the decree in writing or by operation of law and the respondent company cannot apply for execution of the decree under. Order 21, It. 16. 'But the respondent company are, nonetheless, the real owners of the decree because it is passed in relation to and for the recovery of the debt which undoubtedly they acquired by transfer by the document under consideration. The respondent company were, after the transfer, the owners of the debt which was the subject-matter of the suit and the legal incidents thereof and consequentlywere the real owners of the decree. The respondent company derived their tide to the debt by transfer from the transferors and claimed the same under the latter. When the Respondent company became the owner of the decree immediately on its passing, they must, in relation to the decree, be also regarded as persons claiming under the transferors.

The respondent company would not have become the owner of the decree unless they were the owners of the debt and if they claimed the debt under the transferors, they must also claim the relative decree under the transferors as accretions, as it were, to their original right as transferees of the debt. In my opinion, the respondent company are entitled under Section 146 to make the application for execution which the original decree-holders could do.'

3. The above reasoning applies with equal force to the facts of the present case also. It was while the suit for redemption was pending that the present appellant had obtained an assignment of the entire rights of the original plaintiff in the suit properties. It was also expressly stated in the deed of assignment that the assignee was entitled to get himself impleaded as additional plaintiff in the suit and to continue the suit to its logical termination. Even, though he did not get himself impleaded in the suit, it is clear that the decree passed in the unit should enure to his benefit only, the transferor plaintiff having continued the suit only as benamidar for the transferee. Clearly, therefore, the appellant is a person claiming under the decree-holder and entitled to all the Benefits under the decree. He is therefore entitled under Section 146, C.P.C., to execute the decree and to reap its benefits.

4. In the result this Second Appeal is allowedand in reversal of the order of the lower appellateCourt, the first Court's order permitting the appellant to execute the decree as per the execution application already filed in the case, is restored. Theappellant will get his costs throughout from the contesting respondent.


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