Ponniah Pillai vs T. Natarajan Asari

P.S. Kailasam, J.—The fifth respondent in Execution Petition No. 209 of 1957 in Original Suit No. 28 of 1944, a petition for delivery of

possession of certain properties is the appellant herein.

One Ponnammal, through her power-of-attorney, Nataraja Asari, the contesting respondent herein, filed a suit Original Suit No. 28 of 1944,

Sub-Court, Madurai against 29 defendants for delivery of possession. A decree was passed on 16th April, 1944. Defendant 28 filed an appeal,

Appeal Suit No. 290 of 1945. Pending the appeal, on 9th March, 1947, Ponnammal transferred all her rights in favour of the respondent, Nataraja

Asari for Rs. 8,350. On 16th July, 1947, Ponnammal died, and Nataraja Asari was brought on record in the appeal. One Lakshmanan claimed

that he was entitled to come on record as the legal representative through a Will left by Ponnammal. Lakshmanan was also brought on record in

the appeal. Appeal Suit No. 290 of 1945 preferred by the 28th defendant was dismissed on 9th August, 1950.

Nataraja Asari sought to execute the decree by filing Execution Petition No. 373 of 1950. He prayed for delivery of properties. This petition

was opposed by Lakshmanan, who claimed that he was the legal representative of the deceased Ponnammal. Lakshmanan filed a memorandum of

objection and contested the right of the petitioner to execute the decree, and the executing Court found that the dispute between Nataraja Asari

and Lakshmanan cannot be gone into u/s 47 of the Civil Procedure Code. It also held that Nataraja Asari was not an assignee-decree-holder and,

therefore, could not execute the decree.

Nataraja Asari filed Original Suit No. 17 of 1952 in the Sub-Court, Madurai for a declaration that he was entitled to execute the decree. The

suit was dismissed by the Sub-Court on 19th October, 1953. Nataraja Asari preferred an appeal, Appeal Suit No. 142 of 1954 of the High

Court. The appeal was compromised and a compromise decree was passed, in which Nataraja Asari''s right to execute the decree was

recognised. Subsequently another execution petition, Execution Petition No. 181 of 1954, was filed by Nataraja Asari on 8th July, 1954, and that

execution petition was dismissed on 30th October, 1954. Execution Petition. No. 209 of 1957, out of which the present second appeal arises,

was filed on 14th September, 1957.

Execution Petition No. 209 of 1957 is sought to be resisted on two grounds. It is stated that Execution Petition No. 373 of 1950 was not in

accordance with law and that Nataraja Asari was not an assignee-decreeholder, who could execute the decree under Order 21, Rule 16, Civil

Procedure Code.

It was submitted that in Execution Petition No. 373 of 1950, it was decided that the dispute was not one u/s 47 of the CPC and that Nataraja

Asari was not an assignee-decreeholder. A faint suggestion was made that the order in Execution Petition No. 373 of 1950, could operate as res

judicata. for any further claim by Natarja Asari as assignee-decreeholder. This contention cannot be upheld, for Nataraja Asari filed a suit Original

Suit No. 17 of 1952. for declaration of his rights and he succeeded in getting his rights declared as the person entitled to execute the decree in

Appeal Suit No. 142 of 1954. It was then contended that the petition was not one in accordance with law. This contention is based on the ground

that claim of Nataraja Asari as the assignee-decreeholder was not accepted in Execution Petition No. 373 of 1950. In Kalepalli Rajitagiripathy Vs.

Kalepalli Bhavani Sankaran and Another, , a Bench of this Court considered the case where persons claiming to be the assignee-decreeholders

filed an execution petition on 26th July, 1919. In the petition the decreeholders prayed for recognising the transfer and for executing the decree.

That petition was dismissed, because the execution of the decree had been stayed. It is in the subsequent proceedings the right of the transferee-

decreeholders was negatived. It was held that at the time when the application was made they were the transferee-decreeholders by assignment

from the original decreeholders and as such the proper persons to execute the decree. Thus, it will be seen an execution petition by an assignee-

decreeholder, even though his rights as transferee were subsequently negatived the petition was held to be a step-in-aid of execution. Their

Lordships expressed the view that until the assignment was held to be invalid, the transferees were the persons entitled to execute the decree.

In Bhubneshwar Narayan Singh Vs. Lokenath Dhandhania and Others, , Imam, C.J., as he then was, held that it should make no difference that

the claim that the applicant was the transferee was ultimately rejected, and that the provision of Article 182 of the Limitation Act did not speak of

the application to execute the decree being made by the decreeholder himself. In the case cited two persons Jhunjhunwala and Nanpania filed

execution petitions claiming as trustees of the decreeholder. The applications were in conformity with the provisions of Order 21, Rule 16, Civil

Procedure Code. They subsequently did not succeed in proving that they were the trustees, and, therefore, it was contended that the applications

were not in accordance with law as they purported to execute a decree to which they were strangers. On the facts it was held that it would make

no difference if the claim of the applicant as a transferee was ultimately rejected.

In Gundicha Padhano and Another Vs. Parvati Podhanuni and Others, , 110, it was held that when the execution application is filed making

mention therein about the factum of transfer the application is in accordance with law. It rejected the contention that unless the transfer is proved

the execution application would not be in accordance with law. Even though the execution application was dismissed as the decreeholder tailed to

appear and prove the fact of transfer, the application was held to be one in accordance with law within the meaning of Article 182(5) of the

Limitation Act.

The cases cited above are sought to be distinguished on the ground that in Execution Petition No. 373 of 1950 the petitioner''s claim for

recognising him as the assignee-decreeholder was rejected. This fact would not make any difference, as he did claim by virtue an assignment of the

property in his favour and in fact did succeed in establishing in the appeal that he was the person entitled to execute the decree, whereas in the

cases cited above the applicant did not succeed in proving, that he was the assignee of the rights of the decree-holder. Therefore, the contention of

the learned Counsel for the appellant that Execution Petition No. 373 of 1950 is not in accordance with law and cannot be taken as a step-in-aid

of the execution, cannot be accepted.

It was next contended that the respondent, Nataraja Asari, cannot be said to be an assignee-decreeholder and, therefore, cannot avail himself

of Order 21, Rule 16, CPC and that, as the transfer by the decree-holder was after the decree was passed, he could not maintain an execution

petition even u/s 146, Civil Procedure Code. Nataraja Asari claims to execute the decree on the basis of the transfer by Ponnammal of all her

rights in the property pending the appeal in the High Court. It is not a transfer of the rights of the decree in writing as required under Order 21,

Rule 16, CPC but is a transfer of the property after the decree was passed without transferring, the rights in the decree.

In Hansraj Pal v. Mukhraji Kunwar I.L.R.(1907) All. 28, it was held that when a decreeholder for possession of immovable property sells a

portion of such property, the sale does not give the purchaser any right to execute the decree. In the case cited the decree-holder sold a portion of

the property to different persons, and one of the persons who purchased the property, sought to execute the decree on the ground that the decree

was transferred to him to the extent of the property mentioned in the sale deed. On a consideration of the sale deed the Court held that he did not

purport to sell or transfer the decree and that a sale of property for possession from a person, who had obtained a decree, did not necessarily

carry with it an assignment of the decree itself, and an application for execution u/s 232 (corresponding to the present Rule 16, Order 21) could

not be maintained.

In Perumal Naidu Vs. Marukrithammal and Others, , the decision in Hansraj Pal v. Mukhraji Kunwar I.L.R.(1907) All. 28, was cited with

approval. It was held that a purchaser of property included in a decree did not become the assignee-decreeholder and did not get the right to

execute the decree or to get possession of the property purchased by way of execution. The two decisions, Hansraj Pal v. Mukhraji Kunwar

I.L.R.(1907) All. 28 and Perumal Naidu Vs. Marukrithammal and Others, , are authorities for the proposition that the purchaser of a property

included in the decree is not an assignee-decreeholder and cannot maintain an application under Order 21, Rule 16, Civil Procedure Code. The

two decisions did not consider the question whether the purchaser of the property included in a decree can execute the decree u/s 146, Civil

Procedure Code. This question was elaborately considered by the Supreme Court in Jugalkishore v. Raw Cotton Co. (1955) S.C.J. 371 : (1955)

1 M.L.J. (S.C.) 220 : AIR 1955 S.C. 376. Two persons named Mohamedali Habib and Sakerkhanoo Mohamedali Habib carrying on business in

the name and style Habib & Sons. instituted a suit against one Jugalkishore Saraf for recovery of Rs. 7, 113-7-0 with interest. When the suit was

pending, on 7th February, 1949, the partners of the plaintiff company executed a transfer to Messrs. Raw Cotton Company transferring all their

interests. The company did not get themselves substituted as plaintiffs but allowed the suit to be continued in the name of the original plaintiffs. A

decree was passed on 15th December, 1949, for a sum of Rs. 8,018-7-0 in favour of Habib & Sons, the plaintiffs on record. On 25th April,

1951, Messrs. Raw Cotton Company presented an execution petition under Order 21, Rule 11, Civil Procedure Code, praying that the Court be

pleased to declare them as the assignees of the decree. The Court issued a notice under Order 21, Rule 16, to Habib & Sons, the decree-holders

on record, and Jugalkishore Saraf, who was the defendant judgment-debtor, requiring them to show cause why the decree should not be

executed. The trial Court gave leave to the company to execute the decree against the judgment-debtor. It was contended before the Supreme

Court that Raw Cotton Company were not the transferees of the decree within the meaning of Order 21, Rule 16, CPC and that they could neither

execute the decree u/s 146, Civil Procedure Code. The Supreme Court held that as the document of transfer in favour of Raw Cotton Company

did not cover the decree, which was passed subsequent to the transfer, there was no room for the application of equitable principle and the

company could not claim to come under Order 21, Rule 16, Civil Procedure Code, as transferees by operation of the law and, therefore, could

not maintain an application for execution.

The Supreme Court next considered the question whether an execution petition could be maintained u/s 146, Civil Procedure Code. The

Court observed at page 393:

Either the respondent company are transferees of the decree by an assignment in writing or by operation of law, in which case they fall within

Order 21, Rule 16, Civil Procedure Code, or they are not such transferees, in which event they may avail themselves of the provisions of Section

146 if the other condition is fulfilled.

The above passage indicates that the transferees who do not fall under Order 21, Rule 16, Civil Procedure Code, may avail themselves of the

provisions of Section 146. The Court proceeded to observe at page 394:

There is nothing in Order 21, 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 which the person from whom he claims could have made.

A Person who claims to be entitled to the benefit of the decree but who does not answer the description under Order 21, Rule 16, is not

precluded under Order 21, Rule 16, Civil Procedure Code, from making an application which the person, from whom he claims could have made

as provided for u/s 146, Civil Procedure Code. The passage cited is wide enough to include a person claiming the benefit of a decree by

assignment of the property after a decree is passed though the particular case before the Supreme Court related to a transfer of the rights of the

decreeholder before a decree was passed. The Supreme Court took the view that unless there is a specific prohibition under Order 21, Rule 16,

the provisions of Section 146, Civil Procedure Code, could be availed of. As an illustration the Court pointed out that the rule prohibited one of

the judgment-debtors, to whom the decree for payment of money had been transferred, from making an application for execution as a person

claiming under the decreeholder. The Court further observed that a person might conceivably become entitled to the benefits of a decree without

being a transferee of the decree by assignment in writing or by operation of law and that in that situation the person so becoming the owner of the

decree might well be regarded as a person claiming under the decreeholder. This passage supports the view that a person who becomes entitled to

the benefits of the decree after the decree is passed, is not excluded from invoking the provisions of Section 146, Civil Procedure Code. The

question that has to be ascertained, according to the Supreme Court, is as to whether an assignee has any right, title or interest in the decree and

whether he can be said to be a person claiming under the decreeholder.

In a subsequent decision reported in Appai Goundan Vs. Perichi Gounder, , the Supreme Court field that Section 146 was introduced with the

object of facilitating the exercise of rights by persons in whom they come to be vested and being a beneficent provision should be construed

liberally so as to advance justice and not in a restricted or technical sense.

The decision in Jugalkishore v. Raw Cotton Co. (1955) S.C.J. 371 : (1955) 1 M.L.J. (S.C.) 220 : AIR 1955 S.C. 376, was considered by

the Andhra. Pradesh High Court in Satyanarayanan v. Arun Naik (1964) 2 A.W.R. 81. The Andhra High Court in considering a case where the

subject-matter of a decree was transferred after the decree was passed held that the transferee could continue the execution petition if it was

already filed by the transferee decreeholder or could file a fresh execution petition on the ground that he was such a transferee u/s 146 of the CPC

and that the provisions of Order 21, Rule 16, would not preclude the transferee from carrying on the execution of the decree obtained by his

transferor, the subject-matter of which was subsequently transferred. The same view was expressed by the Patna High Court in Ram Nath Modi

and Others Vs. Anardei Devi and Others, . The Patna High Court held that a person who has become entitled to the benefits of the decree not by

virtue of the decree or assignment in writing but by virtue of the transfer of the property which is the subject matter of the decree in his favour, is

entitled to execute the decree u/s 146, Civil Procedure Code. In Devasia v. Scaria (1960) K.L.T. 1077, the Kerala High Court held that an oral

assignment of the decree in favour of the assignee was a valid transaction and that even though the assignee would not come within the purview of

Order 21, Rule 16, his competency to make an application to execute the decree u/s 146 could not be denied.

A different view is expressed by Jagadisan, J., in Sampath v. Sakunthala (1964) 2 M.L.J. 563 : ILR (1964) 2 Mad. 363. The learned Judge

took the view that the Supreme Court did not hold that after the passing of a decree, any transfer, though not in form a transfer of the decree,

would yet enable the transferee to proceed u/s 146 by-passing the provisions of Order 21, Rule 16, Civil Procedure Code. According to the

learned Judge, the true principle is that a decree cannot be executed by anybody other than the decreeholder, except by an assignee who satisfies

the requirements of Order 21, Rule 16, and Section 146 of the CPC cannot have the effect of overriding the provisions of Order 21, Rule 16.

With respect I am unable to share the view taken by the learned Judge. The passages extracted from the Supreme Court case in this judgment

would show that the Supreme Court intended to lay down that transferees, if they do not fall within the provisions of Order 21, Rule 16,, may avail

themselves of the provisions of Section 146. The language used by the Supreme Court is wide enough to include a transferee of the property after

the decree is passed. The same view was taken by the Andhra Pradesh, Patna and Travancore High Courts, and I am in respectful agreement with

the view taken by those Courts. I regret my inability to accept the interpretation put by Jagadisan, J., on the decision in Jugalkishore v. Raw Cotton

Co. (1955) S.C.J. 371 : (1955) 1 M.L.J. (S.C.) 220 : AIR 1955 S.C. 376.

In the result the contentions of the learned Counsel that Execution Petition No. 373 of 1950 was not in accordance with law and that Nataraja

Asari being an assignee of the property after the decree was passed is not entitled to maintain an execution petition cannot be accepted. The

appeal is dismissed with costs.

Leave granted.