Ponniah Pillai vs T. Natarajan Asari

(1) The fifth respondent in E. P. 209 of 1957 in O.S. 28 of 1944, a petition for delivery of possession of certain properties, is the appellant herein.

(2) One Ponnammal, through her power of attorney, Nataraja Asari, the contesting respondent herein, filed a suit O.S. No. 28 of 1944, Sub

Court, Madurai, against 29 defendants for delivery of possession. A decree was passed on 16-4-1944. Defendant 28 filed an appeal, A.S. 290 of

1945. Pending the appeal on 9-3-1947 Ponnammal transferred all her rights in favour of the respondent, Nataraja Asari for Rs. 8350. On 16-7-

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. A. S. No. 290 of 1945

preferred by the 29th defendant was dismissed on 9-8-1950.

(3) Nataraja Asari sought to execute the decree by filing E. P. 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 under S. 47 C.P.C. It also held that Nataraja Asari was not an assignee decreeholder and therefore could not execute the

decree.

(4) Nataraja Asari filed O.S. 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 19-10-1953. Nataraja Asari preferred an appeal, A. S. 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 E. P. 181 of 1954 was filed by Nataraja Asari on 8-7-1954 and that execution petition was dismissed on 30-10-1954. E. P.

209 of 1957, out of which the present second appeal arises, was filed on 14-9-1957.

(5) E. P. 209 of 1957 is sought to be resisted on two grounds. It is stated that E. P. 373 of 1950 was not in accordance with law and that

Nataraja Asari was not an assignee decreeholder, who could execute the decree under Or. 21 rule 16 C.P.C.

(6) It was submitted that in E.P. 373 of 1950 it was decided that the dispute was not one under S. 47 C.P.C. and that Nataraja Asari was not an

assignee decreeholder. A faint suggestion was made that the order in E.P. 373 of 1950 could operate as res judicata for any further claim by

Nataraja Asari as assignee decreeholder. This contention cannot be upheld, for Nataraja Asari filed a suit O.S. 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 A.S. 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 the claim of Nataraja Asari as the assignee

decreeholder was not accepted in E.P. 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 26-7-1919. In the petition the

decreeholder 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 transferees 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.

(7) 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 provisions of Art. 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 Jhunjunwala and Manpania filed

execution petitions claiming as trustees of the decreeholder. The application were in conformity with the provisions of Or. 21 rule 16 C.P.C. 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.

(8) In Gundicha Padhano and Another Vs. Parvati Podhanuni and Others, 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. 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 failed to appear and prove the fact

of transfer the application was held to be one in accordance with law within the meaning of Art. 182(5) of the Limitation Act.

(9) The cases cited above are sought to be distinguished on the ground that in E. P. 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 of 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 decreeholder. Therefore, the contention of the learned counsel

for the appellant that E. P. 373 of 1950 is not in accordance with law and cannot be taken as a step-in-laid of execution, cannot be accepted.

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

of Or. 21 rule 16 C.P.C. and that, as the transfer by the decreeholder was after the decree was passed, he could not maintain an execution petition

even under S. 146 C.P.C. 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 Or. 21 rule 16 C.P.C., but is a

transfer of the property after the decree was passed without transferring the rights in the decree.

(11) In Hansraj Pal v. Mukhraji Kunwar, ILR (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 decreeholder 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 under S. 132 (corresponding to the present rule 16 Order 21) could not

be maintained.

(12) In Perumal Naidu v. Marukrithammal, AIR 1927 Mad 240 the decision in ILR (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 ILR (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 Or. 21 rule 16 C. P. C. The two decisions did not consider the question whether the purchaser of the property

included in a decree can execute the decree under Sec. 146 C. P. C. This question was elaborately considered by the Supreme Court in

Jugalkishore v. Raw Cotton Co; AIR 1955 SC 376. Two persons named Mohamedali Sahib and Sakherkhanoo Mohamed Ali Habib carrying on

business in the name and style Habib and Sons instituted a suit against one Jugalkishore Saraf for recovery of Rs. 7113-7-0 with interest. When

the suit was pending, on 7-2-1949, the partners of the plaintiff company executed a transfer to Messrs Raw Cotton Co. transferring all their

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

decree was passed on 15-12-1949 for a sum of Rs. 8918-7-0 in favour of Habib and Sons, the plaintiffs on record. On 25-4-1951, Messrs Raw

Cotton Co. presented an execution petition under Or. 21 rule 11 C.P.C. praying that the court be pleased to declare them as the assignees of the

decree. The court issued a notice under Or. 21 rule 16 to Habib and Sons, the decreeholders 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 have leave to the company to

execute the decree against the judgment debtor. It was contended before the Supreme Court that Raw Cotton Co. were not the transferees of the

decree within the meaning of Or. 21 rule 16 C.P.C. and that they could neither execute the decree under S. 146 C. P. C. The Supreme Court held

that as the document of transfer in favour of Raw Cotton Co. did not cover the decree, which was no room for the application of equitable

principles and the company could not claim to come under Or. 21 rule 16 C.P.C. as transferees by operation of the law and therefore could not

maintain an application for execution.

(13) The Supreme Court next considered the question whether an execution petition could be maintained under S. 146 C.P.C. 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 Or.

21 rule 16 C.P.C. or they are not such transferees, in which event, they may avail themselves of the provisions of S. 146 if the other condition is

fulfilled.

The above passage indicates that the transferees who do not fall under Or. 21 rule 16 C. P. C. may avail themselves of the provisions of S. 146.

The court proceeded to observe at page 394--

There is nothing in Or. 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 Or. 21 rule 16 is not precluded

under Or. 21 rule 16 C.P.C. from making an application which the person, from whom he claims, could have made as provided for under S. 146

C.P.C. 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 decree-holder before a decree was passed.

The Supreme Court took the view that unless there is a specific prohibition under Or. 21 rule 16, the provisions of S. 146 C.P.C. 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 entitled

(precluded?) from invoking the provisions of S. 146 C.P.C. 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.

(14) In a subsequent decision reported in Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, , the Supreme Court held that S. 146

C.P.C. 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.

(15) The decision in AIR 1955 SC 376 was considered by the Andhra Pradesh High Court in Satyanarayan Vs. Sindhu Bai Sharma, . 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 under S. 146 C.P.C. and that the provisions of Or. 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 of assignment in writing but by virtue of the transfer of the property which is the

subject matter of the property which is the subject matter of the decree in his favour, is entitled to execute the decree under S. 146 C.P.C. In Mani

Davasia v. 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 under S. 146

could not be denied.

(16) A different view is expressed by Jagadisan J. in Sampath Mudaliar v. Sakuntalammal, 1964 2 MLJ 563. The learned Judge took to 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 under S. 146 by passing the provisions of Or. 21 rule 16 C.P.C. According tot he 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 Or. 21 rule 16 and S.

146 C.P.C. cannot have the effect of overriding the provisions of Or. 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 S. 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 these courts I regret my inability to accept

the interpretation put by Jagadisan J. on the decision in AIR 1955 SC 376.

(17) In the result the contention of the learned counsel that E.P. 373 of 1950 was not in accordance with law and that Nataraja Asari being an

assignee of the property after the decree passed is not entitled to maintain an execution petition cannot be accepted. The appeal is dismissed with

costs. Leave granted.

(18) Appeal dismissed.