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Ganga Das Seal Vs. Yakub Ali Dobashi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal670
AppellantGanga Das Seal
RespondentYakub Ali Dobashi and anr.
Cases ReferredDwar Buksh Sirkar v. Fatik Jali
Excerpt:
appeal - civil procedure code (act xiv of 1882), sections 2, 232, 244, clause (c)--civil procedure code amendment act (vii of 1888)--application by transferee from legal representative of decree-holder--question relating to execution, discharge, satisfaction or stay of execution of decree--parties to suit--legal representative--meaning of the terms 'transferee' and 'representative'--decree--administrator of estate. - .....died before the decree was executed. fazal rahaman, the administrator of his estate, put the decree in execution and then transferred it by assignment in writing to yakub ali dobashi, who applied to have his name put on the record as decree-holder and to execute the decree. the munsif on the appellant's objection rejected the application, holding on the evidence adduced by the parties that the alleged transfer was a sham and collusive transaction. yakub ali dobashi appealed, and district judge, finding that there was a good transfer for consideration, reversed the munsif's order and allowed the application.2. this appeal is preferred by the judgment-debtor against the order of the district judge, and his contention is that the judge acted without jurisdiction in reversing the.....
Judgment:

Macpherson and Stevens, JJ.

1. Abdul Rahaman, having obtained a decree for money against the appellant, died before the decree was executed. Fazal Rahaman, the administrator of his estate, put the decree in execution and then transferred it by assignment in writing to Yakub Ali Dobashi, who applied to have his name put on the record as decree-holder and to execute the decree. The Munsif on the appellant's objection rejected the application, holding on the evidence adduced by the parties that the alleged transfer was a sham and collusive transaction. Yakub Ali Dobashi appealed, and District Judge, finding that there was a good transfer for consideration, reversed the Munsif's order and allowed the application.

2. This appeal is preferred by the judgment-debtor against the order of the District Judge, and his contention is that the Judge acted without jurisdiction in reversing the Munsif's order, as there was no right of appeal Against that order.

3. We think this contention fails. In our opinion the case comes under Section 244 of the Civil Procedure Code and the Munsif's order is a decree according to the definition of that term in Section 2 of the Code. The Allahabad Court held in Badri Narain v. Jai Kishen Das (1894) I.L.R., 16 All., 483, that a person who purchased a decree from the person in whose favour the decree was made is his representative, within the meaning of Clause (c), Section 244, and that the order of the execution Court determining whether he is or is not such a representative, if that question arises, is an order under Section 244 and therefore a decree.

4. This Court came to the same conclusion in Dwar Buksh Sirkar v. Fatik Jali (1898) I.L.R., 26 Cal., 250. In the present case the decree was purchased, not from the person who obtained it, but from his legal representative, the person who was administering his estate. We think the purchaser is qua the decree as much the representative of the person who obtained the decree, as if he had purchased it directly from him.

5. It is argued that although the term 'representatives' in Section 244 may include a purchaser direct from the person who obtained the decree, and who was necessarily a party to the suit, subsequent transferees would not be included in the term. We see no reason for any such distinction. If the term representatives 'in Clause (c), Section 244, includes a transferee at all, it includes, we consider, any person who is at the time of execution a transferee within the meaning of Section 232. This was the conclusion arrived at in the Allahabad case cited above, and we adopt without repeating the reasons given in that case. If the transferee of the decree to whom the provisions of Section 232 would apply is not, qua the decree, the representative of the person who originally obtained it, within the meaning of Section 244, the result would be this: that in no case in which a decree had been transferred could any question relating to the execution, discharge or satisfaction of the decree, or to the stay of execution thereof be determined under Section 244 as between the transferee and the judgment-debtor, although the transferee is the decree-holder, as that term is defined in the Code, and the person who is entitled to execute the decree. Obviously, we think, this was not the intention of the Legislature in enacting Section 244 and the addition made thereto by Act VII of 1888.

6. We hold, therefore, that an appeal did lie to the District Judge. The appellant cannot question in second appeal the Judge's decision that there was in fact a transfer for consideration. It was, however, contended in the first Court that Fazal Rahaman had no power to make the transfer, even if he did make it, as the estate was at the time of the transfer vested in a Receiver appointed under an order of Court. The first Court, holding that there was in fact no transfer, did not go into this question; but the District Judge before reversing the order ought to have determined it.

7. If the estate was at the time of the transfer vested in a Receiver duly appointed, and the decree appertained to the estate, Fazal Rahaman had apparently no power to transfer the decree. We do not know what the facts on this point are. They must be determined by the Judge. His order must be set aside and the case sent back in order that he may determine them and dispose of the case accordingly. The cost of this appeal will abide the result.


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