Nayinsikh Jayanarayana vs Seerapu Polayya and Others

This appeal is from an order of the Additional Subordinate Judge of Cocanada who held that an execution petition filed on 15th July, 1927, was

barred by limitation. It was contended before him that a previous execution petition, namely, E.P. No. 78 of 1925 filed.on 26th October, 1925,

which is Ex. E, was an application in accordance with law made to the proper Court for execution and saved limitation and hence the execution

petition in question was not barred by limitation by Article 182(5) of the Limitation Act. The facts of the case quite shortly are that the original

decree-holder was one Ramanarayana Daga. He filed an insolvency petition in Calcutta and was adjudged insolvent, his properties therefore

vesting in the Official Assignee of Calcutta. The Official Assignee of Calcutta sold all the debts due to the original decree-holder from others, and

the present appellant, the execution-petitioner in the lower Court, purchased all those debts. There is an assignment deed Ex. G by the Official

Assignee of Calcutta, dated 12th September, 1925, and registered on 16th September, 1925. It was on the strength of Ex. G that the appellant

filed his execution petition on 15th July, 1927. That petition was objected to by the first judgment-debtor in the decree on the ground that it was

invalid and as before stated, the lower Court upheld the objection. The grounds of the objections are that E.P. No. 78 of 1925 filed on 26th

October, 1925, was signed by the original decree-holder, namely, Ramanarayana Daga, who on the date was an insolvent and whose assets had

therefore vested in the Official Assignee and further that the original decree-holder did not disclose to the Court that he was an insolvent or that he

was not the right person to present the execution petition. One further fact has to be stated and it is that the appellant here, having taken an

assignment of the suit debt in favour of the insolvent from the Official Assignee of Calcutta, gave a power-of-attorney to the insolvent, the original

decree-holder, to collect the debts in question and Ex. E does not refer to the power-of-attorney or show that it was filed on behalf of the

appellant. The power-of-attorney is dated 23rd September, 1925. The learned Additional Subordinate Judge thinks that Ex. E evidences a

fraudulent transaction as it was filed at a time when the original decree-holder had absolutely no interest in the decree and that it was void in law

and cannot be a valid application which saves the decree from the bar of limitation. He says that the facts relating to the insolvency of the original

decree-holder and the sale of the debts were suppressed and were not made known to the Court. For these reasons he finds Ex. E not a genuine

execution petition and that it cannot be relied upon to save the decree from the bar of limitation. In this case the insolvency of the original decree-

holder does not cause any complication for the reason that the Official Assignee had parted with all interest in the decree debt which he had sold in

auction to the appellant for the benefit of the creditors in the insolvency. In this case we are merely concerned with the positions of the original

decree-holder and the appellant, the assignee of the decree debt. The appellant had taken no steps upto that time to get himself recognised as the

transferee-decree-holder. The only person in whose favour the decree was, on the face of it, was the original decree-holder and the executing

Court was bound to regard him as the person entitled to execute the decree and could regard no other person as such. In Jasoda Deye v.

Kirtibash Das I.L.R.(1891)Cal. 639 it was held that the person appearing on the face of the decree as the decree-holder is entitled to execution

unless it be shown by some other person that he has taken the decree-holder''s place. In Ari Chetty v. Theerthamalai Chetty (1916) 3 L.W. 521 a

decision of Sadasiva Aiyar, and Moore, JJ., it was held that when the transferee of a decree has not been recognised by the Court, the decree-

holder on record is entitled to execute the decree in spite of the transfer. Another decision in support of this view is Hari Krishnamurthi v.

Suryanarayanamurthte ILR (1919)Mad. 424 : 38 M.L.J. 271. Spencer, J., says:

The executing Court had no concern with the rights of any other person other than the right of the person appearing on the face of the decree as

the decree-holder as it did not then appear that an any other person had taken the decree-holder''s place.

And the decision in Jasoda Deye v. Kritibash Das I.L.R.(1891)Cal. 639 is relied upon in support of that view. Another case is Harnand Rai-

Phul Chand v. Rup Chand-Chiranji Lal ILR (1933) Lah. 744 in which it is stated:

It follows from Rulrs 10 and 16 of Order 21, Civil Procedure Code, that the person appearing on the face of the decree as the decree-holder is

the person entitled to execution. Therefore where the transferee of a decree has not made a legal application for execution under Order 21, Rule

16 the executing Court is bound to allow execution at the instance of the transferor even after the date of the transfer, till the transfer is recognised

by the Court.

In N.M. Kadir Meera Saheb Taraganar Vs. N.M. Pir Mahomed Taraganar and Others, it was held that there was absolutely no provision for a

judgment-debtor paying a third party merely because he happens to know of the assignment of the decree in the latte.r''s favour by the decree-

holder; and it is perfectly clear that, if he were to make such payment, he would run the risk of having to pay money over again to the decree-

holder. No useful purpose will be served by multiplying authorities all of which are to the same effect as the decisions already referred to. The

application here was clearly in accordance with law and the Court was bound to treat the original decree-holder as the person entitled to execute

the decree. It was contended, however, on behalf of the first respondent, firstly, that the intervening insolvency altered the position and, secondly,

that, on the date of the presentation of Ex. E, he was under liability to pay the appellant and therefore there was the danger of his being made to

pay twice over. With regard to the former argument, for the reasons we have already stated, the insolvency of the original decree-holder does not

complicate the matter by reason of the fact that the Official Assignee had no further interest in the decree-debt. With regard to the second

objection, this is clearly unsound. If the Court recognises only the person who on the face of the record is entitled to execute the decree and

allowed that person to proceed with the execution and the decree-debt is satisfied, thereafter a transferee decree-holder cannot be heard to say

that he should be allowed to execute the decree over again, he not having taken any steps previously to get himself recognised as the transferee-

decree-holder. Whatever rights he may have, are only against the executing decree-holder and not against the judgment-debtor. The lower Court

was, therefore, wrong in regarding Ex. E as an invalid application and the present execution petition barred by limitation. The result is that this

appeal must be allowed with costs and the case remanded to the lower Court for disposal according to law.