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Kishore Chand Bhakat and ors. Vs. Gisborne and Co. Decree-purchasers and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1890)ILR17Cal341
AppellantKishore Chand Bhakat and ors.
RespondentGisborne and Co. Decree-purchasers and ors.
Cases ReferredSeetaput Roy v. Ali Hossein
Excerpt:
civil procedure code, 1882, section 232 - transfer of portion of decree--execution of decree by transferee of portion of decree. - .....to execute it would place the judgment-debtors in a disadvantageous position, or would deprive them of any equities which exist between themselves and the judgment-creditors, such court ought not to allow the transferee to execute the decree. but always supposing that the rights of all parties are cared for, there seems to us no objection to allowing execution of the decree.2. the second point urged by the learned vakil for the appellant is upon a question of fact. he contends that the district judge has not disposed of the question whether the transfer was, as a matter of fact, a bond fide one. we think, however, as i have already said, that the judgment of the district judge upon this point shows that he has considered the whole evidence, and the conclusion to which he has come is.....
Judgment:

Norris and Macpherson, JJ.

1. In second appeal before us two points have been urged, first, that there can be no transfer of a portion of a decree, and that the transferee of a portion of a decree is not in a position to carry on the execution-proceedings. In support of this contention we are referred to the case of Seetaput Roy v. Ali Hossein 24 W.R. 11, where Mr. Justice Mitter says at page 12 of the report: 'It is doubtful whether under Section 208, Act VIII of 1859,' which is the section corresponding to Section 232 of the present Code, 'they could be so added upon the record as co-decree-holders: Section 208 refers to the assignment of a whole decree not of a portion of a decree. Therefore, as 1 have already observed, it is doubtful whether the Court had power to place the present special appellants as co-decree-holders on the record. But be that as it may, we think that there has been no proper application for executing the decree as far as the mesne profits are concerned.' We are of opinion that there exists no legislative prohibition against the transfer of a portion of a decree, and that, if that is so, there can be no objection whatever to the transferee of a portion of a decree carrying on execution-proceedings, provided of course that the whole decree is executed, and that in the execution proceedings, if any interest in the decree is left in the original judgment-creditors, their interests are provided for. No doubt, either upon an application for the substitution of the alleged transferee upon the record, or upon the application by such transferee to be allowed to execute the decree, the judgment-debtors have a right to be heard, and they have a right to urge the existence of any equities subsisting between themselves and the judgment-creditors; and if the Court sees that allowing the transferee of a decree to execute it would place the judgment-debtors in a disadvantageous position, or would deprive them of any equities which exist between themselves and the judgment-creditors, such Court ought not to allow the transferee to execute the decree. But always supposing that the rights of all parties are cared for, there seems to us no objection to allowing execution of the decree.

2. The second point urged by the learned Vakil for the appellant is upon a question of fact. He contends that the District Judge has not disposed of the question whether the transfer was, as a matter of fact, a bond fide one. We think, however, as I have already said, that the judgment of the District Judge upon this point shows that he has considered the whole evidence, and the conclusion to which he has come is that the transfer was, as a matter of fact, a bond fide one. There are no materials before us upon which we can interfere with this decision upon a question of fact. Both points raised in this appeal therefore fail. The appeal must therefore be dismissed with costs.


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