Ayyaru Pillai vs Varadaraja Pillai and Another

Devadoss, J.—This is a petition to revise the order of the Subordinate Judge of Tanjore recognising the assignment of the decree in favour

of the petitioner in the lower Court. The contention of Mr. Ram-a--swami Iyer for the petitioner is that it was not competent for the assignee

decree-holder to make the application he did to the Court executing the decree The decree was passed on 12th April 1915 by the Subordinate

Judge''s Court, Tanjore. It was, transferred for execution to the District Munsif''s Court of Tanjore by an application, dated 18th July 1916. The

assignee decree-holder applied to the District Munsif''s Court on 10th February 1920 for the issue of notice to the defendant under Order XXI,

Rule 22, and asked ""that the records may be transferred along with a certificate to the Subordinate Judge''s Court, Tanjore fer the purpose of

further conducting the suit."" In it he also stated that the decree had-been transferred to him by assignment. The question is, whether this is an

application which it is competent for the assignee decree-holder to make. If ha was compel tent to make the application it would be step-in-aid of

execution under Article 182(5) of the Limitation Act. It is well-settled that an assignee decree-holder can apply only to the Court which passed the

decree for being recognised as the assignee of the decree and it is also settled that he cannot make an application only for the purpose of being

recognised as an assignee decree-holder. His application must be one for execution and, therefore, if he does not apply for execution, his

application would not be considered to be a proper application. In this case, he asked that the records be sent to the other Court for the further

conduct of what he calls a suit and I suppose he meant by it for the execution of the decree. It has been held in Krishnayyar v. Venkayyar 6 M. 81

: 2 Ind. Dec. 334 that if a decree-holder applies to the Executing Court to send the records to the Court which passed the decree, that application

is a step-in-aid of execution and saves limitation. Whether a transferee decree-holder can make a similar application is the question. In order that

his claim as assignee decree-holder may be recognised, it is necessary that the paper should be sent back to the Court which passed the decree. It

is admitted that the assignee decree-holder was subsequently recognised to have got a proper assignment of the decree by the Subordinate

Judge''s Court, Tanjore which passed the decree. In order to get that relief, his application to the Executing Court to send back the papers to that

Court is a competent one. I think, in order to enable the Court which passed the decree to recognise him as the assignee decree-holder, it was

necessary for that Court to have the records sent up by the Executing Court and an application for that purpose, I think, comes within the

expression of ""stop-in-aid of execution"". In this case, the application was not by the assignee decree-holder for execution to the Executing Court

which no doubt he was incompetent to make till his assignment was recognised. But in order that the Court which passed the decree may pass an

order under Order XXI, Rule 16, it was necessary though it might not be so in every case, at least in this case, that the papers should have been

sent back. I hold, therefore, that this application was a proper one which the assignee, decree-holder was competent to make in this connection. I

would like to refer to the case reported as Manorath Das v Ambica Kanta Bose 1 Ind. Cas. 57 . In that case an application which was made by a

person who got a title to a decree by operation of law and who made an application before the Court which passed the decree recognised him as

being entitled to execute the decree, was a proper application. In this view of the case I think the order of the lower Court is correct and this

petition is dismissed with costs.