Velayudhan vs Subadramma

K.P. Radhakrishna Menon, J.—Advocate Sri. T.P. Kelu Nambiar took notice on behalf of the respondent. The judgment debtor is before this court. His case is that the order of the executing court directing delivery of the property to the respondent herein is bad in law because the respondent after the assignment of the decree, cannot be said to be ''the holder of a decree'' within the meaning of Order 21 Rule 10 C.P.C. Only a holder of the decree can execute the decree.

The question before this court therefore is, can the respondent be said to be the holder of the decree? This question to my mind, is unnecessary to be considered because the Supreme Court has recognised him as the holder of the decree avis seed from the order passed in Civil Appeal Nos. 2702 & 2703/77. Relevant portion of the order reads:-

That the Respondent herein be and is hereby directed to deposit a sum of Rs. 1, 25,000/- (Rupees, one lakh twenty five thousand only) in the Court of Additional Munsiff, Ernakulam within two months from this the 3rd day of April, 1989, and the appellant herein will be entitled to withdraw the said amount to enable him to rehabilitate himself on his eviction from the land and shed under dispute and the appellant herein, be and is directed to handover vacant possession of the land and shed under dispute to the respondent herein within a month there of..

(Emphasis supplied)

The respondent mentioned in the above excerpt is none other than the petitioner in E.P. 227/73. It is not the case of the petitioner herein that the decree-holder has transferred the decree of the Supreme Court. If that be the position, the petitioner shall riot be heard to say that the respondent is not competent to execute the decree.

The above position notwithstanding, the learned counsel for the petitioner argues, that the question as to whether the respondent is competent to execute the decree requires to be considered for the reason that after the assignment of the decree, the respondent is not competent to execute the decree. In other words, according to the learned counsel, after the assignment only the assignee of the decree is competent to execute the decree. In support of the above argument, the learned counsel relies on a decision of the Bombay High Court in Namdeo Digamber Gaikwad and Others Vs. Vijaykumar Ramchandra Shaha and Others, . Regarding the principle enunciated in this decision there cannot be any dispute. But here the position is different; the decree sought to be executed is the decree modified by the Supreme Court. The petitioner has no case that the decree-holder-respondent has transferred the decree as modified by the Supreme Court. It is relevant in this context to note that the decree-holder, in compliance with the directions of the Supreme Court has deposited an amount of Rs. 1,25,000/- on 22-5-89 for payment to the petitioner. That the petitioner is bound by the directions contained in the decree as modified by the Supreme Court, no more can be disputed. The learned counsel for the respondent in this connection brought to my notice the information he had got from his counter part practicing in the Supreme Court that the above decree was passed on consent. No doubt, this submission of the learned counsel for the respondent is disputed by the learned counsel for the petitioner.

The provisions governing the application for execution by a transferee of a decree are contained in Rule 16 of Order 21. The first proviso thereto says that the notice of an application for execution by the transferee of a decree shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the court has heard their objections (if any) to its execution. The provisions of this proviso are imperative, in that, the giving of notice of the application to the assignor and judgment-debtor, is an indisputable condition of jurisdiction and the failure to give such notice renders all proceedings in execution void as against them. That means, an assignment of a decree cannot be said to be valid as against the judgment-debtor until the court heard and disposed of the objections, the judgment-debtor would file on receipt of the notice contemplated in the first proviso to Rule 16. This being the position in law, the objection of the petitioner that the execution petition at the instance of the respondent, the decree-holder is not maintainable is not sustainable.

Yet another contention raised by the petitioner is that the question as to whether the respondent is competent to file the execution petition since he has already transferred the decree, is a question that arises in execution and therefore the executing court is bound to consider and dispose of the same before the decree is executed. In support of this argument he made reference to sub-clause 3 of Section 47 C.P.C. This sub-section reads:- ...Whether any person is or is not the representative of a party, such question shall, for the purpose of this section, be determined by the Court.

A representative of a party mentioned in this Section no doubt includes an assignee also, because the word representative used in the Section has a such wider meaning than the word legal representative used in Section 50. But the question is irrelevant to be considered, because as already noted it is not the case of the petitioner that the decree as modified by the Supreme Court has been transferred by the decree-holder. This argument therefore is rejected.

It is clear from what is stated above that the petitioner somehow or other wanted to circumvent the directions issued by the Supreme Court. This shall not be permitted. The proceedings therefore must be said to be an abuse of the process of the court which cannot go unnoticed. Under these circumstances, I am constrained to dismiss the petition with costs, which I fix at Rs. 1,000/- . The executing court is directed to deliver the property tomorrow itself and if necessary, with police aid. The operative portion of the order will be handed over to the parties today itself.