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P.M.A.R.M. Muthiah Chettiar Vs. Lodd Govinda Doss Krishna Doss Varu and anr. - Court Judgment

LegalCrystal Citation
SubjectContract;Civil
CourtChennai
Decided On
Reported inAIR1921Mad599; (1921)41MLJ316
AppellantP.M.A.R.M. Muthiah Chettiar
RespondentLodd Govinda Doss Krishna Doss Varu and anr.
Cases ReferredLakshmana Chetty v. Ramanathan Chetty I.L.R.
Excerpt:
- - 4. it was well settled under the old code that there could be part transfers of a decree. i consider, that under the indenture there was a transfer of a fraction of the decree amount and of a further interest in the decree holder's right to enjoy the rents and profits from villages mortgaged to lodd govindoss. this preamble distinctly states that lodd govindoss 'has agreed to assign to the share-holder p. the object of section 151 is to give such power to courts and to prevent a failure of justice. as respondent is in possession and enjoying the rents and profits of the mortgaged property it may well be in his interests to delay execution as long as possible while he puts off the appellant's claims.john wallis, c.j.1. this is an appeal under the letters patent from a judgment of oldfield, j. seshagiri aiyar, j. dissenting dismissing, an appeal from an order of the district judgment of chittor refusing the application of the appellant, who claims to be a transferee of a one eighth share in a mortgage decree, to make him a party to the execution proceedings on the mortgage decree in substitution of, or jointly with, the decree-holder. the question has been raised whether any appeal lay to the high court from the order inf question.2. in making that order the district judge purported to act under order 22, rule 10 of the code of civil procedure and, as orders under that rule are appealable, we are bound to entertain the appeal as held in abdul rahiman saheb v. ganapalhi bhattu.....
Judgment:

John Wallis, C.J.

1. This is an appeal under the Letters Patent from a judgment of Oldfield, J. Seshagiri Aiyar, J. dissenting dismissing, an appeal from an order of the District Judgment of Chittor refusing the application of the appellant, who claims to be a transferee of a one eighth share in a mortgage decree, to make him a party to the execution proceedings on the mortgage decree in substitution of, or jointly with, the decree-holder. The question has been raised whether any appeal lay to the High Court from the order inf question.

2. In making that order the District Judge purported to act under Order 22, Rule 10 of the Code of Civil Procedure and, as orders under that rule are appealable, we are bound to entertain the appeal as held in Abdul Rahiman Saheb v. Ganapalhi Bhattu I.L.R.(1900) Mad. 517 and Lakshmanan Chetty v. Ramanathan Chetty I.L.R. (1904) Mad. 127 .

3. In dealing with the appeal it will be convenient to consider in the first place whether under the present Code a decree can be transferred in part, and if so, whether the part transferee can be made a party to pending execution proceedings and allowed to execute if the transferor who has obtained an order for execution fofbears to execute ; and secondly whether there has been a part transfer of the decree in this case, and if so, whether the part transferee, the petitioner, is debarred by the terms of the deed of transfer from executing the decree or intervening in the execution.

4. It was well settled under the Old Code that there could be part transfers of a decree. Kishvre Chand Bhakat v. Gisborne & Co. I.L.R. (1889) Cal. 341 and Endoori Venkataramaniah v. Venkatachalamulu I.L.R. (1909) Mad. 80 and it was also settled that, one of several decree holders could transfer his interest, Muthunarayana Reddi v. Balakrishna Reddi 6 M.L.J. 172. I do not find any Sufficient indication in the new Code that it was intended to alter the law in this respect. On the contrary the present Code contains a new general Section 146 enacting that, save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken on 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 general provision is to take effect unless it is otherwise provided in the Code itself or by any law for the time being in force, and, even if it should be held that the part-transfer of a decree is not provided for in the rules, though it is not prohibited, that would not prevent due effect being given to such part transfers under this section itself which is wider than the rules if it can be read is authorising such a part transfer. The section should I think have a beneficial interpretation, and be read as supplementing the rules, and, as a part transferee is a person claiming under a decree holder, I think it sufficiently au thorises applications in execution by such a part transferee. Further Section 232 of the Old Code which was held to authorise such an application is reproduced in Order 21, Rule 16, and the fact that the case of the interest of any decree-holder being transferred is now expressly provided for in the rule does not in my opinion show that part transfers are not covered by the rule, and still less that the rule prohibits an application by a part transferee of the decree so as to make Section 146 inapplicable. Reliance has also been placed for the appellant on Order 22, Rule 10(I) which provides that in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved. On the other hand it has been contended that this order does not apply to proceedings in execution. Generally an application for execution is a proceeding in a suit as held in Viru-pakshappa v. Shidappa and Basappa I.L.R. (1901) 26 Bom. 109 and Shaik Davud Rowther v. Paramasami Pillai (1915) 31 M.L.J. 207 and I think that the present Code has been drafted on this basis. It expressly provides by Order 22, Rule 12, that nothing in Rules 3, 4 and 8 of that order which provide for abatements, shall apply to execution, and in Order 23, Rule 4 that nothing in that order shall apply to execution, while it contains no such provision in Order 32 as to minors or persons of unsound mind which, must none the less be equally applicable to execution.

5. A further objection has been taken that an application in execution cannot be an application 'during the pendency of a suit' within the meaning of Order 22, Rule 10, but, if for the purposes of the order applications in execution are applications in suits, they must in my opinion equally for the purposes of the order be applications during the pendency of the suit.

6. I do not, however, desire to rest my decision on this point because in my opinion the terms of Section 146 ai-e wide enough to enable the court to recognize part transfers of a decree.

7. Assuming that a decree may be transferred in part under the present Code, the next question is how is the part transferee to enforce his rights. He is much in the position of a joint decree holder under Order 21, Rule 15 but does not come within the words of that rule, as the decree has not been passed in favour of more p.ersons than one. Rule 15 provides that where the court allows one of several decree holders to execute, it shall make such provision as it may deem necessary for protecting the interests of persons who have not joined in the application. It must also, it seems to me, have jurisdiction to allow such other decree holders to intervene in a pending execution if it is not being properly conducted and must also have jurisdiction to allow a part transferee of the decree so to intervene, if, as alleged here, the executing decree holder is not duly prosecuting the execution. It would be a very unsatisfactory state of the law if a decree holder who has obtained valuable consideration for a part transfer of the decree were to be at liberty to abandon or delay the execution of the decree and defeat the right of the transferee.

8. These being the general questions of law arising in the case, the next question is whether the deed is a transfer of part of the decree. It recites that the decree holder has agreed to assign a one-eighth share of the decree amount together with the securities therefor and goes on to provide that in consideration of Rs. 2,89,000 he assigns ' all that 1/8th share in the above said sum now owing on the said decree.' This in my opinion is a clear assignment of 1/8th of the decree. There is a further assignment of one eighth share of the rents and profits of the mortgaged property which were in possession of the assignor decree holder as mortgagee, but these provisions do not affect the assignment of part of the decree.

9. Lastly, we have to consider the provision that the execution proceedings shall be carried on in the name of the said Mr. Lodd Govindoss (the transferor,) as hereto-fore and the said Mr. Lodd Govindoss shall be at liberty to continue the execution petition No. 145 of 1905 in the District Court of North Arcot as Mr. Lodd Govindoss may think proper and Mr. Lodd Govindoss shall be at liberty to compromise the matter in the course of the said execution proceedings in any manner as he thinks proper. I am unable with great respect to agree with the conclusion of Oldfield, J. that these provisions, show that it was intended not that there should be a part transfer of the decree, but only a transfer of a right to share in any sum that Lodd Govindoss might choose to recover under the decree. On this question I entirely agree with the observations of Seshagiri Iyer, J. Assuming the appellant to be a part transferee of the decree, there remains the more difficult question as to the effect of the stipulation that the transferor is to continue the execution proceedings as he may think proper Seshagiri Aiyar, J., was of opinion that these stipulations merely established a revocable agency which the appellant was at liberty to revoke. It has also been argued before us that, even if this be not so, and the stipulation goes further and prevents the appellant from intervening in the execution, it would be invalid as opposed to the provisions of Section 28 of the Indian Contract Act that 'every agreement by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract by the usual legal proceedings in the ordinary tribunals' is void to that extent. If the stipulations in question have the effect of restricting the appellant absolutely from enforcing his rights in execution as a part transferee of the decree, I am of opinion that they are void under the section and are no bar to the entertainment of the present application if a proper case is made out.

10. Subsequent to the transfer the transferor decree holder in my opinion is in the same position as a joint decree holder who has been allowed to execute under Order 21, Rule 15. As I have already said, I think the other joint decree holders have a right to ask to be allowed to intervene at any stage of the execution if their interests are not adequately protected and I think that equally in the present case the appellant the part transferee should be allowed to intervene and even given the conduct of the execution proceedings if a proper case is made out. As the District Judge has not dealt with this aspect of the case I would allow the appeal, set aside the order and remand the case for disposal according to law in the ' light of the above observations. Costs to abide.

Spencer, J.

11. I agree that the Judgment of Seshagiri Aiyar, J., who was for allowing the appeal against the District Judge's order refusing leave to the transferee, Muthiah Chetty to continue the pending execution proceedings in E.P. No. 145 of 1905 should be upheld in this Letters Patent Appeal.

Oldfield,.J.

12. who differed from him, did so for three main reasons, which are (1) that in his opinion the appellant had not obtained a transfer of the decree (2) that the District Judge's exercise of discretion should not be interfered with and (3) that the Civil Procedure Code does not provide any procedure for allowing a transferee of a partial interest in a decree to carry on pending execution proceedings commenced by his transferor.

13. On the first point he was of opinion that under the terms of the indenture the appellant obtained only the right to recover his share from the fund composed of realisations under the decree or the profits of management as that fund might come into existence.

14. Now the indenture provides for the assignment to the shareholder of 'one-eighth share or 12 per cent of the decree amount together with the securities therefor and the outstanding arrears of rents and profits as standing on the date of the agreement that may be realized.'

15. A fund implies collections and its existence might be gathered from the creation of rules for its formation, its management, and the custody of cash belonging to it, but the indenture is singularly silent on such subjects. The agruments advanced by Mr. K. Bashyam lyengar on behalf of the respondent, really amount to this, that there was a transfer of the debt without a transfer of 'the decree. That is an impossible position for as soon as the decree was passed the debt became merged in it and ceased to exist independently of it. I consider, that under the indenture there was a transfer of a fraction of the decree amount and of a further interest in the decree holder's right to enjoy the rents and profits from villages mortgaged to Lodd Govindoss.

16. I can see no objection to the assignee of a portion of a decree being allowed to come in and execute it on behalf of himself''and his co-decree-holder under Order 21, Rule 16 of the Code of Civil Procedure provided that the Court imposes under Rule 16 such terms for the conduct of the execution proceedings as may be necessary for the protection of the interests of others, such as a direction for payment into court of sums realized under the decree. Kishore Chand Bhakat v. Gisborne & Co. I.L.R. (1889)Cal. 341 Muthu Narayana Reddi v. Balakrishna Reddi I.L.R. (1896) Mad. 306 , Endoori Venkata-vamaniah v. Veukatachalaniulu I.L.R. (1909) Mad. 80, Gyamanee v. Radha Raman I.L.R.(1879) Cal. 592 , are decisions which support this view; and Devar Buksh Sirkar v. Fatik Jali I.L.R.(1898) Cal. 250 , shows that no distinction should be made in this connection between the institution of execution proceedings and the continuation of such proceedings already begun by the assignor decree holder which are still pending.

17. On the second point I am of opinion that the transferee decree holder's right of execution should not have been made to depend upon the discretion of the Court (See Asad Alt Moll ah v. Haidar Ali I.L.R. (1910) Cal 13 , where the change of language between Section 232 of the Code of 1882 and Order 21, Rule 16 by the omission of the words 'If that court thinks fit' is alluded to). The discretion of the court should be confined to laying down the conditions upon which execution should be allowed to proceed. There is no room for the exercise of the court's discretion otherwise. I further think that if the District Judge's grounds for the exercise of his discretion appear to be ill founded the appellate court should in any case interfere. We have here an assertion on oath by the appellant that the respondent, Lodd Govindoss, is improperly delaying execution, which has not been contradicted or shown to be false. I think that Lodd Govindoss was the agent of the appellant under the agreement for recovering what was due as the appellant's 1/8th share in the decree and the sale proceeds of the mortgaged properties, and that under Sections 28 and 203 of the Contract Act, the appellant was at liberty to revoke the authority he gave in the indenture to his agent for carrying on execution proceedings in his own (agent's) name if he acted prejudicially to his (principal's) interest in respect of his one eighth share.

18. On the last point, the general provisions of Section 146 of the Code of Civil Procedure and the special provisions of Order 22, Rule 10 as to devolution of interest during the pendency of a suit appear to be ample authority for permitting' ttife assignee decree holder to continue the pending execution proceedings. Although Order 22 is headed Death, Marriage and Insolvency of parties, the use of the word assignment, in Rule 10 implies that transfers of interest inter vivo are included.

19. The observation though obiter in Midnapore Zemindari Co. Ltd., v. Naresh Narain Roy I.L.R. (1911) Cal. 220 that the express exclusion by Rule 12 of the application of Rules 3, 4, and 8 of Order 22 from execution proceedings implies that the remaining rules are applicable even in execution commends itself to my mind. In the note to Rule 12 in Amir Ali's Civil Procedure Code there is an observation to the same effect. The observation in Siiarama-swami v. Lakshminarasimha I.L.R. (1917) Mad. 510 that Rule 10 would not apply to devolution of interest after the termination of the suit was one made with strict reference to an appeal. The learned judges held Section 146 would cover even appeals. I have already dealt with the objection that the assignment to the appellant was not of the decree holder's entire interest. The result is that the appeal succeeds and the case must go back to the District Judge for passing orders under Order 21, Rule 15(2) and 16 Costs to abide.

Kumaraswami Sastri, J.

20. This appeal arises out of a difference of opinion between Oldfield, J., and Seshagiri Aiyar, J., as to the right of the appellant who claims to be a transferee of part of a decree to come on record and to continue execution. proceedings. The decrse is a mortgage decree for 21,000 rupees passed in favour of the respondent's father who was a mortgagee in possession, on the 29th September 1903 in respect of which execution proceedings were filed by the decree holder on the 13th December 1905 and on the decree-holder's death continued by the respondent his son. On the 1st October 1917 the respondent executed an indenture in favour of the appellant which, appellant contends transferred to him an eighth share in the amount secured by the decree for a consideration of 2,89,000 rupees and which respondent states was only an assignment of an eighth share of the sum that might be ultimately realised. The appellant on the strength of the deed applied to the District Court to be brought on record as assignee decree-holder and to execute the decree either in substitution of or jointly with the respondent. - It was alleged that the respondent was conducting execution proceedings in a manner prejudicial to the appellant. The application was opposed by the respondent on the ground that he was not entitled to apply for the relief claimed. The District Judge held that there was a transfer of an eighth share in the decree but that appellant was not entitled to the relief claimed as the deed of transfer stipulated that execution proceedings were to be carried on by the respondent and that as there was a contract that he would not join in the execution proceedings. He did not go into the allegations made against respondent but contented himself with stating that the holder of a 7/8th share would not act in a manner prejudicial to the appellant who had an eighth share only.

21. On appeal Oldfield, J., was of opinion that the appellant was not in law entitled to the relief he claimed while, Seshagiri Aiyar, J., took the contrary view. I agree with the view taken by Seshagiri Iyer J.

22. So far as the indenture dated the 1st October 1917 is concerned, I am of opinion that it is an assignment of an eighth share in the decree. This preamble distinctly states that Lodd Govindoss ' has agreed to assign to the share-holder P.M.A. Muthiah Chettiar one eighth share or twelve and half per cent, of the decree amount together with the securities therefor and the outstanding arrears of the rents and profits as standing on this day that may be realised (according to the accounts of the taluq office) for a consideration 6f 2,89,000.' The deed proceeds to state that in consideration of the said sum Lodd Govindoss assigned 'all the one eighth share in the above said sum now owing on the said decree as hereinbefore mentioned and one-eighth share of the arrears of rents and profits now due and may be realised on the said decree and of all other securities for the said decree amount to which Mr. Lodd Govindoss may be entitled'. The transfer was subject to certain conditions. Execution proceedings were to be carried on in the name of Lodd Govindoss as heretobefore and he was at liberty to continue the execution proceedings in E.P. No. 145 of 1905 as he may think proper and be at liberty to enter into any compromise he thought fit. If the execution proceedings resulted in a sale the appellant was entitled to an eighth share of lands purchased by the decree-holder himself or to an eighth share in the sale proceeds if the lands were purchased by strangers. A private sale of the property comprised in the decree was to be made on consultation with Muthiah Chettiar the transferee. I think it is clear from the terms that what was transferred was an eighth share of the decree and not simply a right to share in the amount that might be realised, the transferee having no interest in the decree itself. The preamble is clear and refers to the transfer of an eighth share of the decree. The clause allowing the transferor to continue execution proceedings in his name and giving him power to compromise are expLalnable by the fact that the transferor retained 7/8th share in the decree and wanted to secure a predominating right in realisation. If all that was transferred was only a share in the fund that might be ultimately realised nothing would have been easier than to have said so. The whole tenor of the document shows that it was the 1/8th share in the decree that was transferred.

23. I do not think there is anything in the provisions in the Civil Procedure Code prohibiting the transfer of a part of a decree. In Kishen Chand Bhakat v. Gisborne and Co. I.L.R. (1889) Cal. 341 a decree-holder assigned a twelve annas share of the costs awarded to him and the transferee applied for the execution of the decree. It was contended on appeal that as the transferee purchased only a portion of the decree he had no right to be substituted in place of the decree holder and permitted to execute. It was held that there was no prohibition in the Civil Procedure Code against the transferee of a part of the decree executing the decree subject to any equities which the judgment-debtors may have against the original decree-holder and subject to the interest of the original decree-holders retained by them being safeguarded.

24. In Muthu Narayana Reddi v. Balakrishna Reddi I.L.R. (1896) Mad. 306 it was held that there was no prohibition against one of several decree holders assigning his interest in the decree and the assignee applying for execution. In Endoori Venkataramanaiah v. Venkalachalamulu I.L.R. (1909) Mad. 80 a decree-holder who obtained a decre e for maintenance transferred it in so far as it related to the arrears accrued due. It was held following Kishen Chand Bhakat v. Gisborne and Co. I.L.R(1889) . Cal. 341 and Muthunarayana Reddi v. Balakrishna Reddi I.L.R. (1896) Mad. 306 that the assignment of part of a decree was valid and the transferee of such part could execute the decree.

25. If a transferee of a part of the decree can apply to execute a decree he is equally entitled to apply to continue execution proceedings already instituted by his transferor. In Dawar Buksh Sirkar v. Fati Jali I.L.R. (1898) Cal. 250 it was held that an assignee pending execution proceedings can continue the execution proceedings as there was nothing in the Code to prevent the Court from recognising the transferee as the person to go on with the execution in cases where there was an assignment pending execution proceedings. In fact to hold otherwise would lead to great hardship and necessitate proceedings being commenced de novo. A fresh application may also be barred.

26. I see nothing in the present Code of Civil Procedure preventing a transferee of part of a decree from applying to the court to bring him on record in the execution proceedings and allowing him to execute the decree either along with or in substitution for the decree holder. Section 146 of the Code is very general and provides that where proceedings may be taken or applications made by or against any person then the proceedings may be taken or the application may be made by or against any person claiming under him. Order 21, Rule 15 provides for applications for execution by one or more joint decree holders in case where a decree has been passed jointly in favour of one or more persons. Rule 16 provides for the interest of any decree holder in the decree being transferred and empowers the court to execute the decree on the application of the transferee in the same manner and subject to the same conditions as if the application was made by such decree-holder.

27. If assignment of part of a decree is valid I do not see why the assignee should not apply to be allowed to execute the decree jointly with the decree-holder interested in the remainder on the analogy of a joint decree-holder applying for execution under Rule 15. The words of Section 146 which are very general do not prohibit this and so long as there is nothing in Order 21, Rules 15 and 16 cutting down the right, Section 151 will empower the court to grant relief by applying principles analogous to Rules 15 and 16 and give him relief even assuming that the rules would not in terms apply. Where rights are conferred by the sections of the Code and no provision is made for a particular set of facts I think courts ought to appiy the provisions of the rules which are nearest in point with such modifications as may be necessary and not. refuse relief on the ground that the legislature has not made provision for a particular case though within the generality of a section of the Code. The object of Section 151 is to give such power to courts and to prevent a failure of justice. In cases of transfer of part of a decree pending execution I think the proper course is to allow the transferee to be brought on record in execution proceedings and to treat further proceedings as if it was a joint petition by the transferor and transferee, Even if Rule 10, Order 22 does not apply to execution proceedings owing to the rule referring to pending suits I do not see why the same principle should not be applied. During the pendency of the suit a transferee of the whole or any part of the interest of the plaintiff or one of the plaintiffs is entitled to be brought on record and there is no reason why a transferee pending execution proceedings should not be given similar relief especially as the transferee can only work out his rights by execution and a denial of the right simply because an execution petition by his transferor was pending would lead to grave hardship in case the transferor is negligent or hostile. The present Code gives the Court no discretion to allow a joint decree holder to come on record and execute the decree. It will of course be open to the court to give the conduct of the proceedings to such of the petitioners as it might think fit after taking proper steps to secivre the interest of the others.

28. The legal right of the petitioner to join an execution proceeding being in my opinion clear the question is whether the terms of the deed of transfer in his favour preclude him from exercising the rights. The clause in the deed relied on runs as follows: 'That the execution proceeding shall be carried on in the name of the said Mr. Lodd Govindoss as before and that the said Mr. Lodd Govindoss Krishnadoss shall be at liberty to continue the execution petition No. 145 of 1095 in the District Court of North Arcot as Mr. Lodd Govindoss Krishnadoss may think proper and Mr. Lodd Krishnadoss Govindoss shall also be at liberty to, compromise the matter in the course of the said execution proceedings in any manner as he thinks proper.' I am of opinion that this clause does not amount to a negative covenant whereby the transferee precludes himself absolutely from having anything to do with execution proceedings under all contingencies. It merly amounts to an appointment of Lodd Govindoss as the transferee's agent to realise the amount under the decree. It is not an agency coupled with an interest as Lodd Govindoss had no lien, charge or other interest in the eighth share transferred to Muthiah Chettiar. His interest is only in the 7/8th share not transferred. An arrangement between co-owners whereby one person is empowered to do certain acts for the benefit of all of them would not make the agency one coupled with an interest so as to make it, irrevocable if his conduct is prejudicial to the other co-owners. The agreement that Mr. Lodd Govindoss was to continue the execution proceedings in his own name would no doubt be an important factor in determining who should be given the conduct of the execution proceedings, but I do not think it is an absolute bar to the transferee applying to be added as a party to the execution application in case he shows that he would be otherwise prejudiced. Even if the agency is one coupled with an interest there is nothing to prevent the principal from acting where the agent refuses to act or acts in a manner which is prejudicial to the interest of the principal especially when such a course, is riot required to safeguard the agent's interests owing the conflict between the interests of the principal and agent. An agent coupled with an interest is as much bound to act bond fide and in the interests of his principal as any other agent. The clause giving Lodd Govindoss the absolute discretion to compromise woufd be unaffected by any orders bringing the petitioner on record in execution proceedings as there is nothing to prevent Lodd Govindoss from entering into a compromise. So long as there is no fraud or collusion the court will record the compromise and would disregard any objection of the transferee who under the deed of transfer in his favour has deprived himself of the right to object to bona fide compromise of the claims under the decree.

29. If the clause as to Lodd Govindoss continuing execution proceedings in his name amounts in law to an absolute prohibition of the transferee from executing, I think the clause would be invalid as falling under Section 28 of the Contract Act which renders every agreement by which a party thereto is restricted absolutely from enforcing his rights under or in respect of any contract by the usual legal proceedings in the ordinary tribunals void unless it can be brought under the exceptions to the section. The only way to realise by legal proceedings the fruits of a decree which has been transferred is by execution and when there has been an absolute transfer any direction that he shall not execute the decree under any circumstances would be a restriction repugnant to the interest created and so inoperative.

30. It was contended by appellant during the course of the argument that Order 22 Rule 10 applied to execution proceedings and reference was made to the fact that Rule 12 provides that nothing in Rules 3, 4, and 8 shall apply to proceedings in execution of a decree or order thus making the other rules applicable. Reliance was placed on Midnapore Zemindari Co. v. Naresh Narain Roy I.L.R. (1911) Cal. 220 where Casperz and Sharfuddin JJ. observed ''The present Code (Order 22 Rule 12) seems to imply by the principle of exclusion that all the rules of that Order except Rules 3,4 and 8 are applicable to proceedings in execution of a decree or order, and we are inclined to think that Rule 10 is so made applicable.' These observations were obiter as the learned Judges began by stating that as the case was one not in execution of a decree it was unnecessary to decide the point. Reliance has been placed by the respondent on the decisions passed under the corresponding section in the Act of 1882 and to Manmotha Nath Milter v. Rakkal Chandra Tewary (1911) 14 Cal. W.N. 752 and to Sitaramaswami v. Lakshmi Narasimha I.L.R. (1917) Mad. 510 where it was held by Seshagiri Iyer and Napier JJ following Subbu Pillai v. Rangaswamy (1917) M.W.N. 306 that Order 22 Rule 10 does' not apply to applications after the termination of the suit. I am of opinion that Order 22 Rule 10 which expressly refers to assignments, creation or devolution of any interest during the pendency of a suit in terms excludes applications after a final decree has been passed. The words ' pendency of a suit,' mean the interval between the filing of a pLalnt and the passing of a final decree. It is no doubt true that applications for the execution of a decree are proceedings in the suit itself Virupakshappa v. Shidappa and Bassappa I.L.R.(1907) 26 Bom. 109 , but in order to bring the case within Order 22 Rule 10 the application should be in a pending suit. I do not think that the fact that only Rules 3,4 and 8 are referred to in Rule 12 would make Rule 10 applicable if the wording of the rule necessarily renders it inapplicable to execution proceedings. As a decree for any deficiency that may arise has been passed in the present case which was decided before the present Civil Procedure Code was passed it is unnecessary to consider if in mortgage suits the suit can under Order 34 of the present Civil Procedure Code be considered as pending till the last of the decrees contemplated by it has been passed.

31. It has been argued that if Rule 10 does not apply there will be no appeal from the order of the District Judge to the High Court. As the District Judge purported to act under Order 22 Rule 10 and rejected his application an appeal will lie even if the court thinks the rule inapplicable. In Abdul Rahiman Sahib v. Ganapathi Bhattu I.L.R. (1900) Mad. 517 it was held by Sir Arnold white C.J. and Subramaniya Iyer J that the facts that the District Judge had no power to pass an order under a particular section does not bar this Court from treating this order as having been passed there-under for the purposes of of entertaining an appeal against the order and reference was made to the decision of the Privy Council is Hurrish Chunder Chowdhury v. Kali Sundari Debi I.L.R. (1882) Cal. 482 . A similar view was taken in Lakshmana Chetty v. Ramanathan Chetty I.L.R. (1904) Mad. 127. The application is in substance one by a representative of the decree-holder to execute the decree and the relief claimed is against the judgment-debtor. The application is one to execute a decree. I do not think it matters from whom the objection proceeds. As the case falls under Section 47 of the Cede the order is by virtue of the definition of decree in Section 2 appealable as a decree.

32. The appellant has made several allegations to the effect that the respondent has been acting in a manner prejudicial to his interest. These allegations have not been gone into by the District Judge who disposed of the case on the gtound that the appellant was precluded by the terms of the deed of assignment from making the application. The remark of the Judge that it is improbable that the respondent will act in a manner prejudicial to the recovery of the amount due under the decree as he has a predominating interest is hardly a finding on the facts alleged on a consideration of the evidence before him. As respondent is in possession and enjoying the rents and profits of the mortgaged property it may well be in his interests to delay execution as long as possible while he puts off the appellant's claims.

33. I would reverse the order of the District Judge and direct that the application of the petitioner be disposed of according to law in the light ol the observations in the judgment. Costs to abide and follow the result.


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