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Karuppa Goundar Vs. Chinna Angappa Goundar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1971)1MLJ252
AppellantKaruppa Goundar
RespondentChinna Angappa Goundar
Cases ReferredCode. In Smt. Saila Bala Dassi v. Nirmala Sundari Dassi
Excerpt:
- - , took a different view on the ground that the supreme court did not hold that after the passing of the decree any transfer, though not in the form of transfer of the decree, would yet enable the transferee, to proceed under section 146. 5. the following passage at page 565 of mulla's code of civil procedure 13th edition, volume i, clearly summarised the position: the law is thus settled that persons claiming in the right of the decree-holder can apply to execute the decree, though they have not obtained an assignment as provided in order 21, rule 16. the opinion therefore expressed in some decisions that it is only those persons who can bring themselves within order 21, rule 16, that can execute the decree is not good law......of the first defendant in the suit under sections 146 and 151 of the code of civil procedure, to amend the compromise decree and it is against the order allowing the amendment, the petitioner-second defendant has come forward with this civil revision petition.2. unfortunately, the compromise entered into between the parties in the suit was not made part of the decree. on account of this defect, the decree drafted in the suit referred to the common carttrack as proceeding also to the south of survey field no. 295 which is not mentioned in the compromise. the learned district munsif in allowing the amendment has merely brought the decree in accordance with the compromise in the suit. sri k. ramaswami appearing for the petitioner is not able to show how this is.....
Judgment:

R. Sadasivam, J.

1. Petitioner is the second defendant in O.S No. 235 of 1947 on the file of the Court of the District Munsif Tiruppur. The respondent Chinna Angappa Gounder filed I.A. No. 1809 of 1966 in the said suit as the representative-in-interest of the first defendant in the suit under Sections 146 and 151 of the Code of Civil Procedure, to amend the compromise decree and it is against the order allowing the amendment, the petitioner-second defendant has come forward with this Civil Revision petition.

2. Unfortunately, the compromise entered into between the parties in the suit was not made part of the decree. On account of this defect, the decree drafted in the suit referred to the common carttrack as proceeding also to the south of survey field No. 295 which is not mentioned in the compromise. The learned District Munsif in allowing the amendment has merely brought the decree in accordance with the compromise in the suit. Sri K. Ramaswami appearing for the petitioner is not able to show how this is wrong.

3. But the contention of Sri K. Ramaswami is that the respondent is not entitled to invoke Section 146 of the Civil Procedure Code to have the compromise decree amended as prayed for by him. He relied on the decision in Bhandari v. Ramachandra (1907) 17 M.L.J. 391 that a decree-holder alone is entitled to execute a decree. The plaintiff in that case assigned the decree to be passed in his favour to another, but the suit was allowed to proceed in the name of the assignor only. It was held that the assignee was not entitled to execute the decree as the transferee decree-holder within the meaning of Section 232 of the old Code of Civil Procedure. It was pointed out in that decision that a decree-holder must be construed as meaning decree-holder in fact and not as including a party who in equity may afterwards become entitled to the rights of the actual decree-holder, and that the words of the section relating to a transfer of a decree cannot be construed so as to apply to a case where there was no decree in existence at the time of the agreement. It should be noted that Section 146 of the Code of Civil Procedure is a new provision introduced under the Civil Procedure Code of 1908 and this came into existence subsequent to the above decision. It is true in Sampath Mudaliar v. Sakunthala Ammal I.L.R. (1964) Mad. 363 : (1964) 2 M.L.J. 563, Jagadisan, J., has taken a similar view and he has: observed that the true principle is that a. decree cannot be executed by anybody other than the decree-holder, except by an assignee who satisfies the requirements of Order 21, Rule 16, and that Section 146 of the Civil Procedure Code cannot have the effect of overriding the provisions of Order 21, Rule 16, Civil Procedure Code. It is true that in a case falling under Order 21, Rule 16, Civil Procedure Code, there will be no scope for relying on Section 146 of the Code of Civil Procedure, which specifically provides for its being invoked only in so far as there is no other provision in the Code-relating to the matter. But the learned Judge has proceeded to find that after a decree had been passed, Order 21, Rule 16, Code of Civil Procedure, cannot be evaded by resorting to Section 146 of the Code. But Kailasam, J., in Ponniah Pillai v. Natarajan Asari : (1967)2MLJ281 , has taken a different view. He has held in this decision that a person who claims to be entitled to the benefit of the decree, but who does not answer the description under Order 21, Rule 16, Civil Procedure Code, is not precluded thereunder from making an application which the person from whom he claims could have made, as provided under Section 146 of the Code. This decision has been followed by Venkataraman, J., in Rengaswami v. Rengammal : AIR1969Mad271 .

4. The Supreme Court in Jugulkishore Saraf v. Raw Cotton Co., Ltd. : [1955]1SCR1369 , has discussed the precise scope and ambit of Section 146 and Order 21, Rule 16, Civil Procedure Code. The Supreme Court has pointed out that a person may 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 which case he falls within the scope of Order 21, Rule 16 of the Civil Procedure Code, and if he is not such a transferee, he may avail himself of the provision under Section 146, if all the conditions are fulfilled. Kailasam, J., has referred to this observation of the Supreme Court that the transferees who do not fall upder Order 2i, Rule 16 of the Civil Procedure Code may avail themselves of the provisions of Section 146, Civil Procedure Code. But as already pointed out, Jagadisan, J., took a different view on the ground that the Supreme Court did not hold that after the passing of the decree any transfer, though not in the form of transfer of the decree, would yet enable the transferee, to proceed under Section 146.

5. The following passage at page 565 of Mulla's Code of Civil Procedure 13th edition, Volume I, clearly summarised the position:

This section (Section 146) is wider in its amplitude than Order 21, Rule 16, and enables persons who have succeeded to the interests of the decree-holder in, whole or in part, to execute the decree. Where the plaintiff assigned book debts on which he had filed a suit and the suit was then decreed, it was held by the Supreme Court that the assignee was entitled to execute the decree, not under Order 21, Rule 16, because there was no assignment of, the decree but under this section because he had become entitled to the benefit of, the decree under the decree-holder. The law is thus settled that persons claiming in the right of the decree-holder can apply to execute the decree, though they have not obtained an assignment as provided in Order 21, Rule 16. The opinion therefore expressed in some decisions that it is only those persons who can bring themselves within Order 21, Rule 16, that can execute the decree is not good law. Likewise, a decree can be executed not Only against the judgment-debtor on record, but against all persons represented by him.

6. Unfortunately, the transfer deed in favour of the respondent is not before this Court. But in paragraph 4 of the affidavit in support of I.A. No. 1809 of 1966 on the file of the lower Court, it is stated that the respondent herein purchased the share in the properties that had fallen to the first defendant in the said compromise. Thus, the respondent did not get an assignment of the decree in so far as it is in favour of the first defendant in the suit; but he only purchased the property which formed the subject-matter of the compromise decree from the first defendant in the suit. Hence there is no scope for invoking Order 21, Rule 16, of the Civil Procedure Code in this case. I have already referred to the passage in Mullas' Civil Procedure Code that Section 146 is wider in its amplitude than Order 21, Rule 16 of the Code. In Smt. Saila Bala Dassi v. Nirmala Sundari Dassi : [1958]1SCR1287 , the Supreme Court observed that Section 146 was introduced with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment and that, being a beneficent provision, it should be construed liberally and so as to advance justice, and not in a restricted or technical sense. It could not be disputed that under the compromise decree proceedings could be taken against the respondent in respect of the rights given to the plaintiff in that suit. Having regard to the terms of Section 146 of the Civil Procedure Code persons in the position of respondent can also enforce the rights under the compromise decree against the opposite party. Thus, in this case, the respondent who has obtained the rights of the first defendant in the compromise decree is entitled to enforce those rights in the same manner as the plaintiff in the suit could have enforced his rights under the compromise decree against the respondent herein as the representative-in-interest of the first defendant. The lower Court has therefore rightly invoked Section 146 of the Civil Procedure Code and found that the respondent is entitled to ask for the amendment of the compromise decree. The amendment has been rightly allowed on the merits of the case. For the foregoing reasons, the Civil Revision Petition is dismissed with costs.


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