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Prabashinee Debi Vs. Rasiklal Banerji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal439,137Ind.Cas.857
AppellantPrabashinee Debi
RespondentRasiklal Banerji
Cases ReferredBasroovittil Bhandari v. Ramchandra Kamthi
Excerpt:
- .....rule 16, order 21, civil p.c. to be permitted to put a decree in execution as an assignee of the decree-holder. it appears that, on 15th january 1927, the appellant took an assignment from two persons of a 'certain property with a right to all arrears of rent. the landlords had by that time instituted suits for arrears of rent and the decree, with which we are concerned, is dated 8th february 1927; so that the appellant's kabala, which was on 15th january 1927, was before the decree came into existence. in these circumstances the question is whether she is entitled to apply under rule 16, order 21 of the code.2. now the decision of the division bench in the case of mathurapur zamindari co., ltd. v. bhasaram mandal : air1924cal661 is a very careful decision upon this very question and.....
Judgment:

Rankin, C.J.

1. The appellant in this case made an application under Rule 16, Order 21, Civil P.C. to be permitted to put a decree in execution as an assignee of the decree-holder. It appears that, on 15th January 1927, the appellant took an assignment from two persons of a 'certain property with a right to all arrears of rent. The landlords had by that time instituted suits for arrears of rent and the decree, with which we are concerned, is dated 8th February 1927; so that the appellant's kabala, which was on 15th January 1927, was before the decree came into existence. In these circumstances the question is whether she is entitled to apply under Rule 16, Order 21 of the Code.

2. Now the decision of the Division Bench in the case of Mathurapur Zamindari Co., Ltd. v. Bhasaram Mandal : AIR1924Cal661 is a very careful decision upon this very question and it is against the appellant. 'The only question before us is whether there is any reason why that decision should not be followed. We have been referred to the case of Ananda Mohan Boy v. Promotha Nath Ganguli A.I.R. 1921 Cal. 74 decided by Chatterjee and Panton, JJ., where an assignment of the same day as the decree was held to come under Rule 16. On the other hand, there can be no doubt that the decisions of other Courts upon this rule have taken the same line as the decision of Mukerji, J., in the case of Mathurapur Zamindary : AIR1924Cal661 to which I have referred. I find for example that in the Bombay High Court in the case of Pandu Joti Kadam v. Savla Peraji A.I.R. 1925 Bom. 472 a person who had no title to the decree at the date of the application for execution and completed his title afterwards, was not allowed to execute the decree. At the time of the application for execution the position of the applicant in that ease was this: that he had obtained a decree directing the decree-holder to assign the other decree to him. In spite of his having that decree in his favour, he was not allowed to take up the execution and continue it. Again in the case of Basroovittil Bhandari v. Ramchandra Kamthi [1906] 17 M.L.J. 391 it was held that

the word '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.

3. Where a plaintiff 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, the assignee was not entitled to execute the decree as the transferee decree-holder within the meaning of Section 232 of the old Code. If the rule be carefully considered, it will be noticed that the applicant must come under one or other of two classes. He must say that the decree was transferred to him either by an assignment in writing or by operation of law. It is reasonably clear to me that a case such as the present, does not come under the phrase ' by operation of law' and I think Mukerji, J.'s observations upon that question are convincing. Where the applicant is an assignee by operation of law, it is to be noticed that no notice need go to the assignor and that fact in itself seems to show that such a case as the present is not to be regarded as an assignment by operation of law. We have then to conaider if ho is a transferee by assignment in writing. Can it be said that the kabala prior to the decree is to be regarded for this purpose as an assignment in writing of the decree I do not think so. There seam to be two possible views of the rule. One view would be to say that there must be a decree in existence and a transfer in writing of that decree. That is the strict view--a view which the Courts in India have taken. The only other possible view would be to say that, while other cases are within the rule--such as cases where a person claims to be entitled in equity under an agreement to the benefit of the decree--it is optional with the Courts to give effect to the rule according as the case is a clear one or one which requires investigation of complicated facts or difficult questions of law unsuited for discussion on a mere execution application. In that view if it were understood that the Court had a complete discretion to apply the rule or not, it might be that the rule would be workable; but I do not think that any such discretion as that is intended to be given by the rule. Indeed it is noticeable that while the section at present runs:

and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder.

the old Code contained certain additional words. It contained words 'and, if that Court thinks first the decree may be executed.' Now those words have been deliberately left out in the Code of 1908 and 1 find it very difficult to think that any such discretion as I have referred to is [intended under the new Code. In my [judgment the decision of Mukerji, J., in Mathurapur Zamindary Co., Ltd., v. Bhasaram Mundal A.I.R. 1924 Cal. 661 is sound and ought to be followed. In this view the appeal fails and must be dismissed.

Pearson, J.

4. I agree.


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