Judgement Appeal (No. ii of 1941) from an appellate decree of the High Court (January 19, 1939) which had reversed the order of a single judge of the same High Court in its ordinary original civil jurisdiction (March II, 1938) and had restored the order of the First Assistant Registrar of the High Court (September 3, 1937). Law. Rep. 70 Ind. App. 50 ( 1942- 1943) Bhavani Shankar Joshi V. Gordhandas Jamnadas 2 The following facts are taken from the judgment of the Judicial Committee This appeal arose out of an application made under r. 16 of Order xxi. of the Code of Civil Procedure. On February 19, 1924, F. Friedmanns Diamanthandel Maatschappij (F. Friedmanns Diamond Trading Co., Ld.), (respondent No. 2), herein called " the Dutch company," obtained from the High Court at Madras in its original jurisdiction a decree for Rs.24,207-4-0 with certain interest and costs against one Ramanath Joshi, the appellants father. He died on September 15, 1924, and on February 8, 1927, leave was given by the High Court to execute the decree against the appellants as his legal representatives. The second appellant was at that time a minor, but that fact was at first overlooked. On January 26, 1935, application was made to the High Court under r. 16 of Order xxi., by one Gordhandas Jamnadas (respondent No. 1), who claimed to have taken an assignment, dated November 8, 1933, of the decree, and asked for sale of certain immovables of the judgment debtors situate within the High Courts original jurisdiction, and for an attachment of a decree which they had obtained in a court at West Tanjore. An order having been irregularly made on October 22, 1935, without any guardian ad litem for the minor, one Venkatesa Tarwadi was appointed guardian in April, 1936, and by affidavit dated April 24, 1936, he set up certain objections to the application. An order having been irregularly made on October 22, 1935, without any guardian ad litem for the minor, one Venkatesa Tarwadi was appointed guardian in April, 1936, and by affidavit dated April 24, 1936, he set up certain objections to the application. He said, first, that the assignment of November 8, 1933, had been executed by one Shantilal Lallubhai Pandya whose power of attorney did not authorize him to assign the decree secondly, that the decree had been adjusted by an arrangement for payment to the Dutch company of a sum of Rs.4277-4-0 by way of composition at the rate of three annas in the rupee ; that the alleged transferee, Gordhandas Jamnadas, had agreed to make that payment on the judgment debtors behalf and had in fact paid it to the Dutch company, though no steps had been taken to get the payment recorded thirdly, that thereafter Shantilal and Gordhandas Jamnadas had in fraud of the judgment debtors executed the assignment of November 8, 1933. The second appellant came of age, and his guardian was discharged by order of July 20, 1937. On September 3, 1937, the Registrar allowed the application under r. 16, recognized the assignment and directed execution to proceed against the properties which had been mentioned in the application. On appeal to Gentle J. that order was set aside on March 11, 1938. The learned judge held that Shantilals power of attorney did not authorize him to assign the decree, and dismissed the application under r. 16. On appeal to a Division Bench the Registrars order was restored by decree dated January 19, 1939. Leach C.J. and Madhavan Nair J. held that though Shantilals power of attorney did not authorize him to assign the decree, his principals, the Dutch company, had ratified his action .in making the assignment. They rejected the allegation of fraud as unproved, and refused to inquire into any alleged adjustment of the decree as none had been recorded under r. 2 of Order xxi. By the Code of Civil Procedure Order xxi., r. 16 " Where "a decree .... They rejected the allegation of fraud as unproved, and refused to inquire into any alleged adjustment of the decree as none had been recorded under r. 2 of Order xxi. By the Code of Civil Procedure Order xxi., r. 16 " Where "a 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-bolder "Provided that, where the decree .... 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 (if any) to its execution." By Order xxi., r. 2 (3.) " A payment of adjustment, which "has not been certified or recorded as aforesaid, shall not be "recognized by any court executing the decree." 1942. Dec. 14. Wallach for the appellants. By s. 130 of the Transfer of Property Act (IV. of 1882) " the transfer "of an actionable claim .... shall be effected only by the "execution of an instrument in Law. Rep. 70 Ind. App. 50 ( 1942- 1943) Bhavani Shankar Joshi V. Gordhandas Jamnadas 3 writing signed by the "transferor or his duly authorized agent . . . ." Here there is no such assignment, and the question is whether a transfer can be recognized in spite of the absence of assignment merely because the advocate for the original decree-holder stated in court that he ratified the transfer. English equitable principles are not applicable so as to avoid the positive terms of an Indian Act Mulraj Khatau v. Vishwanath Prubhuram Vaidya (( 1912) L. R. 40 I. A. 24.). If s. 130 (supra) applies, there ought to have been an assignment in writing either by the duly authorized agent or the transferor himself. The sections of the Indian Contract Act relating to ratification, ss. 196 to 200, cannot effect the operation of the strict provisions of the Transfer of Property Act. There was no ratification by the original decree-holders of the assignment by Shantilal Pandya. On the question whether the adjustment can be gone into although it was not certified under cl. 3 of r. 2 of Order xxi. 196 to 200, cannot effect the operation of the strict provisions of the Transfer of Property Act. There was no ratification by the original decree-holders of the assignment by Shantilal Pandya. On the question whether the adjustment can be gone into although it was not certified under cl. 3 of r. 2 of Order xxi. of the Code of Civil Procedure, Nalam Subramanyam v. Devara Ramaswami (( 1932) I. L. R. 55 M. 720.) is against the appellants here ; it was held in that case that in an application under Order xxi., r. 16, of the Code, by a transferee-decree-holder the judgment-debtor cannot plead an uncertified adjustment of the decree as an objection to its execution. Raghunath Govind Mayekat v. Gangaram Yesu Mayekar (( 1923) I. L. R. 47 B. 643.), however, is in the appellants favour. Although not directly in question, this point under Order xxi., r. 2, was dealt with by the Board in Seth Nanhelal v. Umrao Singh (( 1930) L. R. 58 I. A. 50, 56.), where it was said that Order xxi., r. 2, " clearly "contemplates a stage in the execution proceedings when "the matter lies only between the judgment-debtor and the "decree-holder." It is submitted that Order xxi., r. 2, refers to the specific holder mentioned in the definition section in the Code, and does not extend to a person to whom a decree may have been transferred. J. M. Pringle for respondent No. 1, was required to deal only with the question of ratification. The assignment of the decree to respondent No. 1 has been ratified by the decree-holder, and the effect of such ratification is to validate the instrument of assignment as an instrument in writing signed by the duly authorized agent of the decree-holder. By s. 197 of the Indian Contract Act, 1872, “ratification may be "express or may be implied in the conduct of the person on "whose behalf the acts are done.” Here there is an express ratification. On the question of the alleged adjustment, Nalam Subramanyam v. Devara Ramaswami (( 1932) I. L. R. 55 M. 720.) was followed in Madan Mohan Lal v. Asa Ram (( 1934) A. I. R. (All.) 445.) and Sm. Sahedan Bibi v. Mir Alt (( 1937) 40 C.W.N.301.). Wallach replied. 1943- Jan. 26. On the question of the alleged adjustment, Nalam Subramanyam v. Devara Ramaswami (( 1932) I. L. R. 55 M. 720.) was followed in Madan Mohan Lal v. Asa Ram (( 1934) A. I. R. (All.) 445.) and Sm. Sahedan Bibi v. Mir Alt (( 1937) 40 C.W.N.301.). Wallach replied. 1943- Jan. 26. The judgment of their Lordships was delivered by Sir George Rankin, who stated the facts, and continued In this appeal Mr. Wallach, for the appellants, does not rely on any case to the effect that Gordhandas Jamnadas, the first respondent, was benamidar for the judgment debtors. Mr. Pringle, for Gordhandas Jamnadas, does not contend that Shantilals power of attorney conferred on him authority from the Dutch company to assign the decree. The appellants main complaint is against the finding that the Dutch company ratified the assignment of the decree. On this, the first question is whether ratification would in law validate an assignment executed by an agent who was not authorized at the time of execution. The learned Chief Justice answered this question of law in the affirmative, having in mind not only the terms of r. 16 above cited but also the requirement of s. 130 of the Transfer of Property Act. By that section” an instrument in writing signed by the "transferor or his duly authorized agent” is the only method of effecting the transfer of an “actionable claim." Their Lordships are not to be taken as deciding that a decree is an "actionable claim” within the definition of that phrase given in s. 3 of the Act. The decisions in India afford considerable support to a contrary view, and they have not been discussed in argument at the bar. The cases on which the learned judges of the Division Bench proceeded were Soames v. Spencer ((1822) 1 Dowl. & Ry. 32.) and Maclean v. Dunn (( 1828) 4 Bing. 722.)—English cases on the Statute of Frauds. These were considered to be in point as showing that the 4th section of that statute did not exclude the possibility of ratification by the phrase " signed by the party "to be charged therewith, or some other person thereunto "by him Law. Rep. 70 Ind. App. 722.)—English cases on the Statute of Frauds. These were considered to be in point as showing that the 4th section of that statute did not exclude the possibility of ratification by the phrase " signed by the party "to be charged therewith, or some other person thereunto "by him Law. Rep. 70 Ind. App. 50 ( 1942- 1943) Bhavani Shankar Joshi V. Gordhandas Jamnadas 4 lawfully authorized." The question must depend on the exact language of the enactment to be construed, and must in India be examined in the light of ss. 196 to 200 of the Indian Contract Act, which contain the general law of India on the point. On these sections their Lordships hold that it was open to the Dutch company to ratify the act of Shantilal who had purported to act on the companys behalf in assigning the decree to Gordhandas Jamnadas. Ratification is in law equivalent to previous authority; it may be express, or it may be effected impliedly by conduct. On the question of fact the appellants are in extreme difficulty. Notice must go to the alleged assignors by the terms of r. 16, and the Dutch company have been duly served. They appeared by their advocate before the Division Bench and confirmed the ratification. They are parties to the appeal now before the Board, and do not appear at the hearing to complain that they still retain their rights as decree-holders. The High Court was under no duty to inquire who instructed the advocate who appeared for the Dutch company. In these circumstances the assignment of November 8, 1933, must be upheld so far as regards the question of Shantilal’s authority. The next question arises on the terms of the third clause of r. 2 of Order xxi. [His Lordship read the clause and continued] Neither payment nor adjustment of any kind had been recorded in the present case. Can the appellants be permitted to maintain that the assignment is invalid because the decree had been discharged by payment or by a new bargain ? [His Lordship read the clause and continued] Neither payment nor adjustment of any kind had been recorded in the present case. Can the appellants be permitted to maintain that the assignment is invalid because the decree had been discharged by payment or by a new bargain ? A Full Bench decision of the High Court at Madras has held that while in these circumstances it may be open to the judgment debtor to attack the transferees position by showing that he cannot legally possess that character, or that he is a benamidar, or for reasons of a similar nature, the judgment debtor cannot, when there has been no certified adjustment, maintain that there is no decree to be transferred Nalam Subramanyam v. Devara Ramaswami (( 1932) I. L. R. 55 M. 720.). A contrary view had been taken in Bombay, Raghanath Govind Mayekar v. Gangaram Yesu Mayekar (( 1923) I. L. R. 47 B. 643.), which proceeded on the ground that an application under r. 16 of Order xxl was made to the court as the court which passed the decree and not as a court which is executing the decree. The question has been recently before the High Courts at Allahabad (Murari Lal v. Raghubir Saran (( 1933) I. L. R. 56 A. 694.) and Calcutta (Sm. Sahedan Bibi v. Mir Alt (40 C W. N. 301.), which have taken the same view as the Madras Full Bench and have amplified the same reasoning. Their Lordships are of opinion that the Bombay decision is not sustainable. The rule says that “the transferee may apply for execution "of the decree to the Court which passed it." On the face of the rule the application to be made thereunder is an application for execution that it is made to the court which passed the decree does not tend to show the contrary. A consideration which strengthens the words just cited is that otherwise the decree-holder, who certainly can take out execution himself, cannot assign this right to another. Their Lordships are in agreement with the view taken by the High Court of Madras in the Full Bench case and in the present case. A consideration which strengthens the words just cited is that otherwise the decree-holder, who certainly can take out execution himself, cannot assign this right to another. Their Lordships are in agreement with the view taken by the High Court of Madras in the Full Bench case and in the present case. In the Madras and Calcutta cases above mentioned the court expressly refused to hold that a failure to record satisfaction or adjustment of the decree would prevent the judgment debtor from showing, if he could, that the decree-holders assignee was really a benamidar for the judgment debtor, or that the assignment was made in fraud of the latter. Their Lordships see no reason to doubt the correctness of this reservation in any case where it becomes necessary to consider whether the assignment was taken by the debtors agent or with the debtors money. A case on these lines was made by the present appellants, but was disbelieved on the evidence by the Registrar and by the Division Bench, who have negatived the charge of fraud brought against Gordhandas Jamnadas. The case that he was benamidar for the judgment debtors has been abandoned by Mr. Wallach before the Board. On these points their Lordships are of opinion that the appellants have made out no case. Indeed, the affidavit of Law. Rep. 70 Ind. App. 50 ( 1942- 1943) Bhavani Shankar Joshi V. Gordhandas Jamnadas 5 April 24, 1936, made by Venkatesa Tanvadi, the second appellants brother-in-law, while acting as his guardian ad litem, is of such a character that no weight can be attached to it. He does not profess to speak of his own knowledge, and does not give the source of his information; much of what he states is, if true, within the knowledge of the elder brother, the first appellant, who has not deposed to any such effect. Their Lordships will humbly advise His Majesty that this appeal should be dismissed. The appellants will pay the first respondents costs.