Abraham Jacob vs Alice Kurien and Others

S.K. Kader, J.—This revision filed by a tenant against whom an order for eviction was passed in B.R.C.O.P. 125 of 1971 on the file of the Prl. Munsiff''s Court, Kottayam, is directed against an order passed in execution rejecting his contentions that the respondents herein are not entitled to execute the said order. Several grounds were raised before he executing court in support of these contentions. Before the executing court Ex. Al, a gift deed dated 24-2-1972 executed by Kochitti Punnan who was the petitioner in B.RC.O.P. 125 of 1971 in respect of the building involved in the case in favor of respondents 2 to 7, was marked and Pw. 1, the husband of the 5th respondent, was examined. The tenant himself was examined as CPw. 1 on his side, and he had no other witnesses to be examined or any document to be marked. The executing court finding that the gift deed Ext. Al was accepted by the donees during the lifetime of the donor and that the respondents are entitled to proceed with the execution proceedings rejected the contentions of the petitioner.

A revision R.C.R. P. No. 69 of 1982 was filed against this order of the executing court before the District Court, Kottayam and the same was dismissed upholding the order of the executing court.

Before this Court, the counsel appearing for the petitioner urged the following points in support of the revision filed under Sec. 115 C.P.C-

(i) The order passed by the executing court is not only illegal but void as the mandatory provision in the first proviso to rule 16 of Order XXI C.P.C. has beer violated.

(ii) Ext. Al gift deed has not taken effect and is not in conformity with Section 122 of the Transfer of Property Act, as the gift has not been accepted by the donees during the lifetime of the donor.

In support of the contention that the first proviso to rule 16 of Order XXI has been violated, the counsel cited the decisions reported in Zila Singh and Others Vs. Hazari and Others, , Dhani Ram Gupta and Others Vs. Lala Sri Ram and Another, , Venkatamma v. Krishnappa ( 1981 (1) Kar L.J. 119), Arvapalli Ramrao v. Kanumarlapudi Ranganayakulu and others (AIR 1964 Andhra Pradesh (F.B.) 1), Bai Sakar and another v. Ismail Gafoor (A.I.R. 1937 Bombay 65), P, Abdul Samad Saheb v.Sowcar Kamaruddin Saheb and others (A.IR. 1931 Madras 192) and Umamoyee Dasya and Another Vs. Jatan Bewa and Others, . None of these decisions has any application to the facts of the present case except the decision reported in 1981 Kar LJ 119, which has some bearing on the question in the sense that it has noticed the object of the explanation added to this Rule.

The various High Courts, as seen from the decisions cited, have expressed different views on the effect and impact of the violation of the provision in the first proviso to rule 16 of Order XXI C.P.C. The view taken by the Madras High Court in P. Abdul Samad Saheb Vs. Sowcar Kamaruddin Saheb and Others, was that notice under the first proviso to rule 16 of Order XXI CP.C. is an indispensable condition of jurisdiction; while the Bombay High Court in AIR 1937 Bombay 65 observed that notice under the proviso in question is imperative and without such notice the entire proceeding is void. The Calcutta High Court in Umamoyee Dasya and Another Vs. Jatan Bewa and Others, held that the execution of the decree without issue of notice as provided under the first proviso to rule 16 of Order XXI C.P.C. is unlawful. The decisions in Zila Singh and Others Vs. Hazari and Others, and Dhani Ram Gupta and Others Vs. Lala Sri Ram and Another, were dealing with rule 16 of Order XXI before the said rule was amended by Amendment Act 104 of 1976 by adding an explanation to the rule. Apart from this, really these decisions do not support the contention put forward by the counsel for the petitioner. But, on the other hand, they lend support to the contention of the counsel appearing for the respondents that in any view, the execution application in question is maintainable u/s 146 C.P.C.

In Zila Singh and Others Vs. Hazari and Others, one of the contentions raised was that the deed evidencing the sale of lands merely transferred the lands but did not purport to assign the decree and that in the absence of such assignment, the purported assignee cannot execute the decree in view of the provisions contained in rule 16 of Order XXI The Additional District Judge held that the petitioners were entitled to execute the decree u/s 146. C.P.C. The subject-matter of that case was a decree of preemption. The High Court by a majority view held that the subsequent transferees were not entitled to execute the decree because the decree for preemption being a personal one cannot be assigned. The High Court was further of the view that Section 146 C.P.C. would not assist the petitioners. The Supreme Court observed that on a proper constructions if the sale deed in respect of the land would show that the decree itself was assigned, obviously, then the application for execution will be maintainable under rule 16 of Order XXI. It was also observed that if the transferees do not fall within the four corners of Order XXI, rule 16, and the decree itself was not assigned; they would nonetheless be able to maintain application for execution u/s 146 C.P.C.

Dhani Ram Gupta and Others Vs. Lala Sri Ram and Another, was a case where one Rattan Lal who obtained a decree for specific performance of the agreement to reconvey & property, assigned the rights which he had under the decree in favor of one Dhani Ram and another (the appellants before the Supreme Court). The question that arose for determination in the appeal before the Supreme Court was whether it was necessary for the assignment of a decree to take effect that it should be recognized by the court. In that case it was observed that there was nothing in Order XXI rule 16 as furnishing any foundation for the basic assumption that property in a decree does not pass to the transferee under the assignment until the transfer is recognized by the court, and that Order XXI rule 16 neither expressly nor by implication provides that assignment of a decree does not take effect until recognized by the court. No doubt while referring to Order XXI rule 16, the Supreme Court observed that the first proviso to the said rule enjoins that notice of such application shall be given to the transferor and the judgment-debtor and that the decree shall not be executed until the court has heard their objections, if any, to its execution. Both these decisions have no application to the facts of the instant case. The Full Bench decision of the Andhra Pradesh High Court (AIR 1964 AP (F.B.)l) has been referred to and discussed by the Supreme Court in the above decision. In the F.B. case, it was held that when a decree was transferred by an assignment in writing, the property in the decree passed to the assignee at the time of assignment that recognition of the court was not necessary to complete the transaction of assignment but was required to enable the assignee decree-holder to proceed with the execution. A mere plain reading of Order XXI Rule 16 shows that the said rule does not apply to assignment of the property which is the subject-matter of a decree by the decree-holder and that the rule applies only to a transfer of a decree or the interest of any decree-holder in the decree, if the decree has been passed jointly in favor of one or more persons by assignment in writing or by operation of law. This rule enables a person in whose favor a decree or the interest in a joint decree has been assigned in writing or by operation of law to put the decree in execution in accordance with the provisions therein. The first'' proviso to the rule applies only to such cases where decree has been transferred by assignment in writing. In such cases, notice as contemplated in the first proviso to the rule is indispensable. But no such notice is necessary in the case of assignment of the property in respect of which a decree was passed. By the amendment of 1976, the following explanation has been added to rule 16 of Order XXI.

Nothing in this rule shall affect the provisions of Section 146, and a transferee of rights in the property, which is the subject-matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule.

It is crystal clear from tins Explanation that even without assignment of a decree as contemplated in the rule, a transferee of the rights in the property which is the subject-matter of the suit which ended in a decree is entitled to execute the decree without complying with the provisions in the provisos to rule 16 of Order XXI This apart the transferee of rights in the property decreed is entitled to execute the decree u/s 146 C.P.C. As is clear from the Explanation, nothing in the rule shall affect the provisions of Section146. It was very strenuously argued by the counsel for the petitioner Chat in the light of the Explanation added to the rule by the amendment brought in 1976, an assignment of the rights. in property by the decree-holder should be deemed to be an assignment of the decree few the purpose of rule 16 of Order XXI and therefore notice as contemplated by the first proviso to the rule is imperative and as no such notice was issued in this case the entire proceedings of the court below are void. I am unable to agree with this interpretation put on this rule by the counsel for the petitioner. No such interpretation or construction is possible on the plain and unambiguous words in the Rule. Ext. A1 gift deed was executed long before the passing of the order and it is not possible to construe the same as an assignment of the decree coming within rule 16 of Order XXI.

The decision of the Karnataka High Court in Venkatamma v. Krishnappa H, N. (1981 (1) 119 KLJ) also does not support the contention put forward by the counsel for petitioner in this respect. That was also a case where the decree obtained by one Venkatamma, elder sister of revision petitioner therein assigned decree obtained by her in favor of the revision petitioner. Therefore, Order 21, Rule 16, even without the explanation added by the amendment, squarely applied to the said case. The decision of the Supreme Court in Dhani Ram Gupta and Others Vs. Lala Sri Ram and Another, was relied by the Karnataka High Court in the above case. What was held by the Karnataka High Court in the case referred to above was that the explanation added by the amendment to the rule 16 does not in any way whittle down the vigour of the first proviso to Order 21, rule 16 which deals with a case where the decree is transferred by assignment in writing. The decision in Venkatamma v. Krishnappa (1981 (1) KLJ 119) has referred to the objects and reasons for adding the explanation to Order 21 Rule 16; as found in sub-clause (vi) (Clause 75) which stated:-

An Explanation has been added to Rule 16 to make it clear that the provisions of the rule shall not affect Sec. 146, providing for proceedings by or against representatives, and a transferee of the rights in the property, which is the subject-matter of the suit, may apply for execution of the decree without a separate assignment of the decree.

It is therefore, clear that by virtue of this explanation provisions in Section 146 C.P.C. are not in any way affected and that transferee of the rights in the property which is the subject-matter of the suit is entitled to apply for execution without getting a separate assignment of the decree in his favor.

In any view, the respondents are entitled to proceed u/s 146 C.P.C This question was duly and elaborately considered by the Supreme Court and is now well settled by its authoritative pronouncement in Jugalkishore v. Raw Cotton Co. (A.I.R 1955 S.C. 356) where while dealing with the interpretation of statutes Das J. observed:

The cardinal rule of Construction of statute is to read the statute literally, that is by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But, if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation

While constructing Order XXI rule 16, it was held that there is nothing in Order XXI rule 16 which expressly or by necessary implication, precludes a person who claims to be entitled to the benefit of a decree under the decree-holder but does not answer the description of being the transferee of that decree by assignment in writing or by operation of law, from making an application for execution which the person from whom he claims could have made. It was also observed when the transferee became the owner of the decree immediately on its passing, he must, in relation to the decree, be also regarded as person claiming under the transferor. The executing court can apply its mind to the simple equitable principle which operates to transfer the beneficial interest in the after-acquired decree or to questions arising u/s 146. As the assignees from the plaintiff of the debt which was the entire subject-matter of the suit the transferee was entitled to be brought on the record under Order XXII rule 10 and must therefore, be also regarded as a representative of the plaintiff within the meaning of Section 47 C.P.C. This decision of the Supreme Court has been referred to and relied on in Zila Singh and Others Vs. Hazari and Others, . Almost an identical question arose for consideration before a Division Bench of this Court in Kesavan v. Gouri Amma ( 1958 KLT 787). The right to execute the decree in a suit for redemption of a mortgage was in dispute in that case. During the pendency of the suit, the plaintiff assigned all his rights in the equity of redemption of the properties in favor of Kesavan who was the appellant before the Division Bench and directed him to get recovery of possession of the properties from the defendants on payment of the redemption price that may be found to be due to them. There was a further direction in the assignment deed that the assignee may get himself impleaded as additional 2nd plaintiff in the suit and carry on further proceedings towards redemption of the mortgage and recovery of possession of the properties. But the assignee did not get himself impleaded as the additional 2nd plaintiff in the suit at the stage of trial. After passing of the decree in the suit, a joint execution application was filed by the original plaintiff and his assignee. The execution application was opposed by the defendant mainly on the ground that there has not been a valid transfer of the decree as contemplated under Order XXI rule 16 C.P.C. and therefore the assignee cannot be allowed to execute the decree. Although the decisions in Chempakakutty v. Rajaian Nadar (1951 KLT 787) and Oommen Chakko v. Avira Varghese (1952 KLT 334) were cited before the Division Bench, the Division Bench, refused to follow them and relied on the decisions in Jugalkishore v. Raw Cotton Co, (AIR 1955 S.C. 376) and Kangati Mahanandi Reddi Vs. Panikalapati Venkatappa and Another, . In Chempakakutty''s case ( 1951 KLT 787) it was held that the transferee of an immovable property is not a transferee of a decree in respect of the property within the meaning of Order XXI, rule 16, C.P.C. This decision was followed in Oommen Chakko''s Case (1952 KLT 334) where also it was held a transfer of property which is the subject-matter of the suit, will not make the transferee an assignee of the decree which is subsequently passed in the suit, so as to entitle him to apply for execution of the decree under Order XXI, rule 16, C.P.C. The dictum laid down in these two decisions is a complete answer to the argument very vigorously advanced by the counsel for the petitioner that Ext. A1 gift deed should be deemed to be an assignment of the decree for the purpose of Order XXI rule 16 C.P.C But these two decisions were not followed by the Division Bench in Kesavan''s case (1958 KLT 787), because the question whether, apart from the provisions of Order XXI Rule 16, a transferee of the rights of the plaintiff a suit is not entitled to execute the decree that may be passed subsequently in that suit, was not considered in these cases. In other words, the real scope of Sec. 146 C.P.C. was not considered in these two cases. It was held by the Division Bench following the decisions in Jugalkishore''s case (AIR 1955 S.C. 376) and Kangati Mahanandi Reddi Vs. Panikalapati Venkatappa and Another, , that Section 146 is much wider in its scope than the provisions in Order XXI rule 16 and that in the case of a transfer effected prior to the passing of the decree in the suit, the right of the transferee to execute the decree has to be examined in the light of the provisions contained in Section 146 C.P.C. It may be noted that the provisions in Order XXI rule 16 are applied only to applications by a person who has obtained the interest of a decree-holder by means of assignment in writing or by operation of law; whereas section 146 is much wider in its scope so as to enable any person claiming under another to maintain an application which such other person would have made. The position of a transferee who could properly claim rights under the decree-holder may not be that of a transferee of rights under the decree as contemplated under Order XXI rule 16; he can certainly invoke the aid of Section 146 and file an application for execution of the decree. The Division Bench pointed out that this in substance is the view taken by the Madras High Court in Kangati Mahanandi Reddi Vs. Panikalapati Venkatappa and Another, and the correctness of the view taken in that decision was a proved by the Supreme Court in Jugalkishore''s case ( AIR 1955 S.C 376).

The respondents in the case on hand are persons by virtue of Ext. Al claiming under the decree-holder and are therefore entitled u/s 146 C.P.C. to execute the decree. By virtue of the Explanation added to rule 16 of Order XXI also, such a transferee is entitled to execute the decree.

The two other questions raised relate to the validity and acceptance of Ext A1 gift deed. These are mainly questions of facts depending upon appreciation of the evidence on record. Ext. A1 gift deed was executed on 24-2-1972 in favor of additional petitioners 2 to 7 under which the building involved in the case and the land on which it is situated were gifted to them, who are said to be the daughter-in-laws of the donor. The donor died on 3-6-1974, long after the execution of Ext. A10. Pw. 1, the husband of the 5th petitioner, was examined and Ext A1 was marked and proved by him. As against this evidence the petitioner herein was examined as CPw. 1. The evidence of Pw. 1 shows that the original gift deed is in the possession of the donees and that the same is kept by Thankamma Philip, the 5th petitioner; that they have taken steps for mutation and they have been paying revenue in respect of the property. He has also given evidence that after execution of Ext. A1 the donees were looking after the property and receiving rent and it was Thankamma Philip, one of the donees, who was receiving the rent. The executing court duly considered the evidence and found that Ext. A1 gift deed had taken effect and was, accepted by the donees during the lifetime of the donor. These findings of fact in this respect were confirmed by the learned District Judge in R.C.R.P. 69 of 1982. Therefore, there is no substance or merit in the contentions raised in this regard. At the fag end of the arguments the counsel cited Dhani Ram Gupta and Others Vs. Lala Sri Ram and Another, and AIR 1977 S.C. 1504, in support of a prayer that the petitioner may be given at least six months time for vacating the building as he has been running a rice mill in the building in question for the last 25 years: On a consideration of all the facts and circumstances in the case, I think, the petitioner can be given three months time to vacate the building.

The result is that this petition fails and is hereby dismissed with costs; but the petitioner is given three months time from today to vacate and surrender possession of the building to the respondents herein.