Vythinatha Padayachi vs Ammalu Ammal and Another

King, J.—The question involved in this appeal is the interpretation of the expression ''in accordance with law'' in Article 182(5) of the

Limitation Act. The appellant is the transferee of the decree in O.S. No. 1239 of 1926 and in February, 1936, applied to execute it. He had

previously applied in November, 1934 and the learned District Judge of South Arcot has held that that previous application was not in accordance

with law and accordingly dismissed the present application as barred by limitation. The reason given by the learned District Judge is that in 1934

appellant had no right to apply in execution as the deed of transfer which he then filed was unregistered and incapable therefore of effecting any

transfer. Against this decision appellant appeals.

The decree in question was a mortgage decree and it is not, of course, contended for the appellant that in 1934 he did in fact possess any legal

title to his ownership. The argument in appeal is that the requirements of Order 21, Rule 16 are satisfied by a mere ''assignment in writing'' - and in

support of it I have been referred to a number of rulings.

I may say at once that none of the rulings cited really covers the point at issue. It is true, no doubt, that in order for an application to be in

accordance with law it is not necessary for it to be successful, Adhar Chandra Dass v. Lal Mohan Das I.L.R.(1897) Cal. 778. It may be dismissed

for a variety of reasons, Bando Krishna v. Narasimha I.L.R.(1912) Bom. 42, Subramania Desika v. Rangaswami Chettiar (1934) 68 M.L.J. 261

and Sri Sri Sri Nandamani Ananga Bhima Deo Kesari Gajapathi Vs. Sri Madana Mohana Deo, . But none of these four cases in any way affects

the competence of the petitioner to make his application. In Dayalbhai Ramji Kunbi Vs. Dayabhai Dulachand, , it was held that a transferee''s

application was in accordance with law even though the Court had not in fact recognised the validity of his transfer, but here again no question

arose as to the transferee''s status as such. The only cases which appear at first sight to support appellant''s contention are Arasappan v. Pulugasari

(1895) 6 M.L.J. 31 and Kalepalli Rajitagiripathy Vs. Kalepalli Bhavani Sankaran and Another, . Both these cases, however, ideal with

applications accompanied by a valid deed of transfer, in which it was held that the transferee''s rights to the decree must give way before the rights

of third parties - in Arasappan v. Pulugasari (1895) 6 M.L.J. 31, the sons of the transferee to whom he had previously executed a deed of

relinquishment - in Kalepalli Rajitagiripathy Vs. Kalepalli Bhavani Sankaran and Another, , a creditor who had attached the transferred decree.

Though these facts would entail the dismissal of any application by a transferee they would not present any legal obstacle to his filing an application.

It seems clear then, that the appellant can find no real assistance in the rulings on which he relies, and I can see no legal principle for holding that

the learned District Judge was wrong. The question is really very simple. Order 21, Rule 16 contemplates transfer of the decree-holder''s interest in

a decree. In the case of a mortgage decree such a transfer can be effected only by a registered instrument. If an instrument is not registered, no

matter what its terms may be, it cannot effect a transfer. There is therefore in this case no transfer, and no transferee, and the only person with any

title to execute the decree is the original decree-holder. An application filed on the assertion that a transfer has been effected when in fact no

transfer has been effected cannot be an application in accordance with law. Appellant''s learned advocate was himself prepared to concede that an

application by a petitioner who, for example, personates a decree-holder, or presents a forged transfer deed is not in accordance with law and the

only reason why this is so must be because he is not competent to apply. In the present case the appellant in 1934 was neither the original decree-

holder nor a transferee of his interest in the decree, and therefore the CPC gives him no right to apply and his application is obviously not in

accordance with law.

The appeal is dismissed with costs.

Leave refused.