Ram Piara vs Suraj Parkash

J.N. Wazir, C.J.—This is a second appeal and arises out of execution proceedings. The facts which gave rise to this appeal, briefly stated,

are these. Shrimati Diwanani Vidya Vanti obtained a decree against Sardar Suraj Parkash on the 18th December 1957 by which the judgment

debtor was required to demolish the latrine which he had built on the room which belonged to the Plaintiff Diwanani Vidya Vanti. It appears that

Diwanani Vidya Vanti gifted away the room to one Ram Piara by virtue of a registered gift deed dated the 4th August 1958. Ram Piara filed an

application seeking execution of the decree passed in favour of Diwanani Vidya Vanti against Suraj Parkash judgment debtor.

An objection was raised by the judgment debtor that Ram Piara was not competent to take out execution of the decree inasmuch as the decree

passed in favour of the Diwanani had not been transferred by assignment in writing or by operation of law within the meaning of Order 21, Rule

16, CPC This objection did not find favour with the executing Court and it ordered the judgment debtor to demolish the latrine within fifteen days

failing which it would be done by the decree-holder at the cost of the judgment debtor. The judgment debtor appealed and the learned District

Judge allowed his appeal holding that the decree passed in favour of the Diwanani was not executable by Ram Piara to whom the decree was not

assigned.

In this appeal it has been argued that Ram Piara stepped into the shoes of Shrimati Diwanani Vidya Vanti by virtue of the registered gift deed

and, therefore, by operation of law he became the assignee of the decree which he could execute against Suraj Parkash, the judgment debtor.

The gift deed executed by Shrimati Diwanani Vidya Vanti in favour of Ram Piara is completely silent in regard to the decree which had already

been obtained by her. There is no mention in the gift deed that the donor transferred her rights which she had acquired by virtue of a decree in

respect of the room which she gifted away to Ram Piara Appellant. The question for consideration is whether Ram Piara was competent to

execute the decree which had already been obtained by the Diwanani in respect of the room against Suraj Parkash judgment debtor.

The relevant law pertaining to the execution of a decree by a transferee is contained in Order 21, Rule 16 CPC which may be reproduced as

under:

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 subject to the same conditions as if the application were made by such decree-holder:

Provided that, whore the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the

transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections to its execution.

It postulates firstly that a decree has been passed and secondly that that decree has been transferred by assignment in writing or by operation of

law. In the present case neither the decree had been assigned in writing nor is it transferred by operation of law. Diwanani Vidya Vanti, the decree-

holder, had acquired certain rights under the decree which were altogether separate from her title to the property which she gifted away to Ram

Piara. She transferred her ownership rights in the room by virtue of a gift deed but the deed did not assign any rights which she held under the

decree obtained by her against the judgment debtor. In these circumstances Ram Piara donee of the room had no right or title to the decree which

had been obtained by the Diwanani and, therefore, he was not competent to take out execution of the decree under the provisions of Order 21,

Rule 16 of the Code of Civil Procedure

In this view I am fortified by a Full Bench ruling of the Bombay High Court reported as Chimanlal Hargovinddas Vs. Gulamnabi, , in which it has

been held that if the deed of assignment had assigned only the property, namely, the half share of A or had assigned only the right to take a decree

in terms of the award, A, no doubt, could not have applied for execution of the decree unless there was a separate deed of transfer of the decree.

In Jugalkishore Saraf v. Rao Cotton Co. Ltd. (S) AIR 1955 SC 376, it is held that the transfer, in writing, of a property which is the subject

matter of a suit without in terms transferring the decree passed or to be passed in the suit in relation to that property does not entitle the transferee

to apply for execution of the decree as a transferee of the decree by an assignment in writing within the meaning of Order 21, Rule 16.

In the result I find no force in this appeal which is dismissed, but in the peculiar circumstances of the case I leave the parties to bear their own

costs in this Court.

K.V. Gopalakrishnan Nair, J.

I agree that the appeal has to be dismissed.