Gandikota Krishna Somnayajulu and Others vs Devarakonda Annappa and Others

Satyanarayanaraju, JJ.—The question which has been referred to the Full Bench is:

Whether an execution application filed the legal; representative of a decree-holder who was not-brought on.,record as his legal representative was one made in accordance with law.

The facts which have given rise to this reference may be'' briefly stated: On 20-12-1941 the deceased father: of the Respondents'''' obtained a decree'' against the Petitioners in O.S. No. 378:of 1940 On the file of the District Massifs Court; Kovvurf''1 The decree was confirmed in appeal by the: Subordinate Judge''s Court, Eluru, on 9-3-1943''. Before the decree could'' be executed; however; the ''decree-holder died: On 9-3-l946,i the sons of the deceased ''decree-holder,: as his representatives, filed E.: P. No. '' Ill of 1946 against the; judgment-debtors''.

The execution petition merely described the applicants as the legal representatives of the deceased decreerholder and prayed for execution'' but did not contain a specific, prayer that they, should be brought, on record. E. P. No. 1ll of 1946 was dismissed for default on 13-9-1946.: Thereafter, on

Description of application. Period, of limitation Time from which period begins to run 182. For the execution of a decree or order, of any Civil Court not provided for by Article 183 of by Section 48 of the Ctide''"1 of Civil Procedure, 1908. Three years; or where a certified copy of'' the decree or order has been'' registered six years.

Where the application next hereinafter mentioned has been, made the date of the final. order passed on an application made in accor-dance with law to the proper Court for execution, or to take some step-in-aid ofexecution of the decree or order.

9-3-1948,, the legal representatives of the deceased decree-holder again applied for execution in E.P. No. 98 of 1948.

The judgment-debtors contended that E.P.

No. 111 of 1946 was not in accordance with law as the ''legal representatives of the deceased decree holder bad not been brought on record and that the subsequent E. P. No. 98 of 1948; v. not having; been filed within three years from the dlate on which ''the decree had become final, it was barred by limitation. The District Munsiff" accepted the judgment-debtor''s dbjectioh but on'', appeal, the District Judge'' held that E. P. No. 11lof 1946 was in accordance with law and that the subsequenti Execution; Petition No. 98 of 1948 was not; there-fore, barred; by limitation. The judgment-debtors have, come up in revision, against .the said: order.

Now, it is contended for the Petitioners that whenever an application for execution is''''. made by the legal representatives of a deceased; decree-holder, the application must contain two prayers One for recognition, and the other, for execution; and any application which does not contain; a specific prayer for recognition .,.cannot be treated, as one , made in, accordance with.. law.

An application for execution of a decree by a transferee, under an assignment in writing or by operation of, law, is governed by, Order 21 Rule 16 Code of Civil Procedure. The provision of the Code and the Limitation Act, relating ,to execution should be substantially complied with before the, application can. be treated made in accordance with law., The, words "In. accordance, with law" mean, in, accordance'' with, the law, relating to execution.

Order 21 RULE 16 CODE OF CIVIL PROOCEDURESO FAR AS IT is ,material for, the present purpose is as follows:

Where a decree or if a decree has been passed, jointly in favour of two or more persons the)'' interest, of any decree-holder in the decree is transferred by assignment in writing or by operation of'' law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and -subtend to the same conditions as if the application were made by such decree''-holder;

Provided that where the decree or such interest as aforesaid has been transferred by assignment notice of such, application, shall, be given to the transferors and the judgment-debtor, and the decree-shall not be execute until the Court has heard their objections (if any), its execution.

6.The provisions of Article 182 (5), Limitation Act, may also be; noticed:

of law. If the transter ''is by assignment) on Writing, then It is obligatory upon the Court to give notice/ of the application tom be transferor and the judgment debtor, and the decree cannot be executed untill the Court has heard their objections (if any) to the execution. A ''transfer by operation of law means a transfer on death or by devolution or by succession.

The legal representative, who is a transferee by operation of law, has to make an application for execution. Under order 21 Rule 16. Order 21 Rule 10 which entitles a legal representative to apply for execution does not require an independent application for recognition as such. ''The rule only enjoins the transferee by operation of law to make (1) an application for execution (2) to the Court which passed the decree. If these two conditions arcs satisfied, the decree may be executed in the same manner and subject to the same conditions as if the application were made by the decree-holder.

The principlc of Order 21 Rule 16 that no one can execte a decree except the decree-holder or the person to whom the decree has been transferred by assignment in writing or by operation of law The rule contemplates two ''cases of transfer (l) by assignment in writing and (2) by operation

Therefore, an application for execution by the legal representative of a deceased decree-holder Under order 21 Rule 16, which docs not contain a specific prayer for recognition, would nevertheless be an'' ''''application in accordance with law" within the; meaning of Article 182 (5) of the Limitation Act - and an order for substitution of names on the record is not a condition precedent to the legal representatives right to apply for execution.

In the earliest of the reported decisions, Ramachandra Aiyar v. Subvamania Choi liar, 14 Mad LJ 393 (A), Mr. Justice Rhashyant Ayyanga.r had to consider the provisions of Section 282, Code of Civil Procedure, which corresponds to Order. 21 Rule 16 of the present code the learned Judge slated thus:

There is no provision of law which requires the Court to recognise the validity of the transfer of a decree before the transferee can apply u/s 232, Code of Civil Procedure,, to execute the decree. The Only application which a transferee who, according to the definition of the term decree-holder is himself a decree-holder, can make is an application u/s 232, Code of Civil Procedure, for execution of the decree and he cannot make an application to tire Court merely for recognising him as transferee of the decree.

It may be noted here that the definition of the word ''decree-holder'' in the Code of 1882 included a transferee of a decree as well. But, in the present Code, Section 2 (3) defines "decree-holder" as a person in whose favour a decree has been passed or an order capable of execution has been made.

Alagiriswami Naidu v. VcnkutaehclapaUi, Iyer ILR 31 Mad 77 (B). Division Bench of the Madras High Court considered the scope of Section 232 of the old Code. There the decree-holder having died, his widow who was not brought on the; record, applied to execute the decree obtained by her do-. ceased husband. The execution petition was dismissed. In a subsequent execution proceeding, the question arose as to whether the lower application was in accordance with law. The learned Judges cited with approval a passage from an carrier unreported decision in Narayana Nayak v. Karuppa Pillai, Refd. Case No. 18 of 1880 (Mad) (C), which ran thus:

The question is whether this last application was barred by Act XV of 1877, Article 179, and this ..... Depends upon the determination of the question, whether the application made on 31-3-1880 by the Decree-holder''s son, whose name was not then on the record was an application made in accordance with law for execution or to take some step-in-aid of execution.

We are of opinion that the application made on 31-3-1880 was an application made in accordance with law for execution. Sections 365 and 366, Code of Civil Procedure, have reference to the death of a Plaintiff before judgment and have no reference to the case of a decree-holder dying and his representative applying for execution. On the death of a decree-holder, the right to execute devolves by operation of law on his representative, and he may apply for execution u/s 232 of the Code.

It is proper, and perhaps necessary, that the name of the representative should be entered .on the record in the place of that of the Plaintiff or Defendant whom he represents, but the Code does not make this a condition precedent to the attaching of the representative''s right to apply for execution.'''' Following this decision and the decisions in Hafizuddin Chowdhry v. Abdool Aziz, ILR 20 Cal 755 (D), and Balkishan Shiwa Bakas v. Wagarsing, ILR 20 Bom 76 (E), which have taken the same view, the; learned Judges held that the application by the widow was in accordance with law.

Section 50. which is the corresponding provision in the Code relating to the execution of a decree against the legal representatives of a deceased judgment-debtor, provides as follows:

Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against tire legal representative of the deceased.

The decision in Thirupathi Ayyangar Vs. Yegnammal, (F), has arisen u/s 50. There the legal representative of a deceased judgment-debtor pleaded that a previous execution petition was not in accordance with law as it did not contain an express prayer for his addition as such. Following the decision in ILR 31 Mad 77 (B), Mr. Justice Pandalai expressed himself thus:"..... The CPC does not contemplate any specific application to bring on record the legal representative of the judgment-debtor though in ordinary practice such a prayer is usually added in an execution petition. It was probably this departure from practice which caused the return of the petition of 17-7-1926. But this cannot affect the legal validity of the petition if such an express prayer is not necessary.'''''' We may here notice the decision in Narayanan Chetti and Others Vs. Panchanathan Chettiar and Others, (G), by the Division Bench of the Madras High Court consisting of Burn and Mockett, JJ. There the sole decree-holder died and his sons sought to continue the pending execution proceeding was contended for them that they were ''decree-holders'' who could execute the decree without recognition by the Court. The learned Judges held that the song were not ''decree-holders'' as defined in Section 2, Code of Civil Procedure, that the decree had been transferred to them by operation of law on the death of their father and that Order 21, Rule 16, was applicable.. "This case is no authority for the contention that before the legal representatives of a deceased decree-holder can execute the decree, they should apply for recognition. All that the case says is that Order 21, Rule 16, is applicable to a case of devolution of a decree-holder''s interest by operation of law. We do not consider that there is any conflict between this decision and the earlier Bench decision in ILR 31 Mad 77 (B).

We may now ruler to the decisions of other High Courts which have considered the precise scope of Order 21, Rule 16. In Radha Nath Das v. Pradumna Kumar Sarkar ILK (1939) 2 Cal 325 (It) Sen, J., held that Under order 21, Rule 16, Code of Civil Procedure, the assignee of a decree cannot make two applications, one for recording the assignment and Anr. for executing the decree. The learned Judge pointed out that there is no provision in the Code enabling the assignee of a decree to apply only for recording the assignment and that the notice and tire entire proceedings u/s 21 II. 16 originate from an application for execution and that if there is no such application; the proceedings are without any foundation.

The learned Counsel for tire Petitioners then relied upon the following observations of a Bench of die Bombay High Court consisting of Leonard Stone, C. J., and Chagla, J. in Kirtilal Jivabhai Vs. Chunilal Manilal, (I).

It is true that Order 21. Rule 16 does not require that on an application for execution under that rule the Court should pass an order declaring that tire applicant is the transferee of the decree. But, in our opinion, it is desirable that ordinarily such an'' order should be made on an application under Order 21, Rule 16.

The learned Judges pointed out that an application by the legal representative for recognition is not contemplated by Order 21 Rule 16 but that as a matter of practice, it is desirable that such an order should be made before the execution proceeds.

When an application is made by a transferee by assignment or by operation of law, the rule as such does not require that there should be a prayer for recognition of the transfer. The Court to which the application is made might require the applicant to adduce proof that he is an transferee of the interest of the decree-holder; and if the Court is satisfied that he is a lawful transferee, execution shall proceed. The judgment-debtor might raise objections about the locus stand of the applicant to execute the decree in which case the Court would consider the objections so raised and if it is eventually found that the person who has applied for execution is not a transferee of the decree-holder''s interest, the execution petition would be dismissed. Otherwise, execution would proceed.

For the reasons stated above, the answer to, the question referred to the Full Bench must be in the affirmative.