1. The respondent 1 in this appeal was the plaintiff in two suits which came finally to be numbered as O.S. No. 15 and O.S. No. 24 of 1938 on the file of the Subordinate Judge of Kurnool. These were suits mainly, and in O.S. No. 15 wholly, for the recovery of money clue on promissory notes. The claim in O.S. No. 15 was for Rs. 21,788, that in O.S. No. 24 for Rs. 4,698. While these suits were pending respondent 1 on 1st November, 1937 executed a deed of transfer in favour of the present appellant. By this deed he assigned to the appellant 'the entire amounts due in respect of the two suits' for a consideration of Rs. 8,000. The consideration was to be paid within fifteen days of the passing of the decrees in the two suits, but in no case before a date in February 1938. It was also provided that if a decree were not granted in the more important suit (O.S. No. 15) payment of the Rs. 8,000 would not be due, and any payment which might actually have been made should be refunded. On the same day (1st November, 1937) appellant executed in favour of respondent l a promissory note for Rs. 8,000 which was expressed as payable on demand.
2. Decrees in the two suits were in due course passed that in O.S. No. 15 on 22nd September and that in O.S. No. 24 on 25th November, 1938. The sum of Rs. 8,000 was not paid by the appellant within the fifteen days stipulated, and has not yet been paid. On 9th March, 1939 respondent 1 sent a lawyer's notice to the appellant repudiating the transfer on the ground of the non-payment of the consideration within the stipulated time. In April, 1939 appellant applied under Order 21, Rule 16 and Section 146, Civil Procedure Code to execute the decree in O.S. No. 15. The judgment-debtor (respondent 2) remained ex-parte but respondent 1 opposed his application. The learned District Judge of Kurnool held that appellant could not execute the decree both because respondent 1 did not in fact transfer the decree to him, and also because Order 21, Rule 16 and Section 146 gave him no right to do so. Against this order the present appeal has been filed.
3. That the decree was in fact transferred by respondent 1 to appellant seems to us beyond all dispute. In the deed respondent 1 says:
I have this day transferred to you the entire amounts due in respect of the two suits.
4. This language is appropriate only to a completed transaction, and the expression 'sums due in respect of the suits' can mean only 'sums decreed in the suits.' That this is so is made clear by a later passage in the deed where the respondent 1 says:
The amounts due under the decrees in the said two suits are due to you only.
5. It is difficult to understand what exactly the learned Judge's findings are in this matter but he appears in some way to have convinced himself both that the deed does not mean what it says and that it was not meant to be acted upon. On the former point he refers to discrepancies between the deed and the promissory note, but it is obvious from the references to the promissory note in the deed that it is the deed which embodies the agreement between the parties as to how the promissory note is to be treated, so that any discrepancies are of no importance. On the latter point the District Judge emphasises the fact that after the decrees were passed appellant did not pay and respondent 1 did not demand payment of, the Rs. 8,000 which was due; but this proves nothing whatever as to the intentions of the parties in November, 1937. This case is merely another example of the all too common practice of the purchaser of property refusing to pay for it, even though he enjoys, or claims to enjoy it.
6. The learned judge has also introduced into his judgment various irrelevant comparisons with the transactions of the betting-ring, and has stigmatised the bargain between respondent 1 and appellant as undesirable speculation in the result of litigation. We can see no justification for this criticism. The situation as disclosed by the documents is a simple one in which when the agreement was made no blame appears to us to attach to any one. Respondent 1 was prepared to prosecute his suits and obtain decrees but in view of the trouble and uncertainty involved in realising his money after the decrees, he sold the right to execute them to the appellant for a sum which both men must have thought to be reasonable and it is also reasonable that payment should be postponed until after the decrees were in fact granted.
7. The case for the respondent 1 at the arguments before us was that the deed of 1st November, 1937 embodied not a completed transaction but only an agreement to transfer. As we have already pointed out such a case is directly contrary to the plain terms of the document.
8. That such a transaction as is embodied in the transfer deed is perfectly valid is clear on the authority of Glegg v. Bromley (1912) 3 K.B. 474 and this position has not been challenged by the learned Advocate for the respondent 1.
9. The question then arises whether appellant as transferee of the decree, has a right to execute it. It is contended first on his behalf that he can do so under Order 21, Rule 16. Much might perhaps be said for this contention were the matter res Integra, but it, was decided as long ago as 1906 in Bhandari v. Rama-chandra (1906) 17 M.L.J. 391 that the language of Section 232 (the equivalent in the old code of our present Rule 16) cannot be construed so as to apply to a case where there was no decree in existence at the time of the assignment. Appellant's learned Advocate has not been able to show us that this interpretation has been overruled or dissented from in the thirty-five years which have elapsed since it was given, or convince us that the slight modifications in the present Rule 16 have any bearing upon it. We are not in these circumstances prepared to hold that the present appellant can execute this decree under Rule 16.
10. We think however the appellant can undoubtedly execute the decree under the provisions of Section 146. That section so far as it applies here provides that 'save as otherwise provided by this Code' where an application may be made by any person; that application may be made by a person claiming under him. What then is the meaning of 'save as otherwise provided by this Code?' According to the learned Advocate for respondent 1 where the transferee of a decree desires to execute it definite provisions are laid down by Rule 16; and therefore he can do so only if his case conforms to those provisions. The learned Advocate for the appellant interprets the phrase more liberally as permitting applications under Section 146 which do not conflict with the provisions of the Code.
11. Of these two diverse views we prefer to choose the latter, and indeed are bound to do so by virtue of the decision of a Full Bench of this Court reported in Muthiah Chettiar v. Govinddoss Krishnadoss (1921) 41 M.L.T. 316 : I.L.R. Mad. 919. That was a case no doubt where a decree was already in existence at the date of the transfer, but what was transferred was not in the words of Rule 16 'the interest' of the decree-holder but a fraction only of that interest. The learned Judges in Muthiah Chettiar v. Govinddoss Krishnadoss : AIR1921Mad599 , were inclined to hold that Rule 16 might apply to the case before them, but they went further and held that even if it did not, the transferee must be permitted to execute it under Section 146 or perhaps even under Section 151 (vide the headnote, and passages in particular on pages 923, 924 and 932). It is true that the learned judges recognise that if Rule 16 prohibits a particular application it cannot be made under Section 146 or Section 151. The question then is 'Does Rule 16 prohibit the present application?' We are unable to hold that merely because Rule 16 has been interpreted as applying only to decrees in existence at the time of the transfer, it prohibits an application by a transferee who obtained the transfer of a decree, a transfer which is legally valid and is embodied in a written deed (as Rule 16 requires), before the decree was actually passed. To permit execution by such a transferee, in our opinion, in no way violates the principles which are embodied in Rule 16 or in Order 21 generally. The appellant here is the true owner of the decree, and he has his written title-deed, and that is all that the law requires.
12. The learned District Judge has not in our opinion correctly understood the ruling in Muthiah Chettiar v. Govinddoss Krishnadoss (1921) 41 M.L.T. 316 : I.L.R. Mad. 919 and has relied upon the rulings of other High Courts. Though these were again cited before us, it is unnecessary to examine them in detail, though we may point out that they all deal with the assignment of something more than a future decree. It cannot therefore be argued against the present appellant that the terms of his assignment deed would compel him to make an application under Order 22, Rule 10. There is no case which lays down the proposition that a transferee to whom a future decree (and nothing else) has been expressly assigned cannot execute it. But whatever the views of other High Courts may be, our own High Court has negatived the proposition that Order 21, Rule 16 is all-inclusive in this matter and following the principles laid down in Muthiah Chettiar v. Govinddoss Krishnadoss (1921) 41 M.L.T. 316 : I.L.R. Mad. 919 we hold that the appellant, is entitled to execute the present decree. The appeal is accordingly allowed and E. P. 28 of 1939 will be restored to file and disposed of according to law. Respondent 1 must pay appellant's costs here and in the Court below.