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1945 DIGILAW 76 (ALL)

Mohd. Ishrat Ali v. Molvi Sayed Raza

1945-02-25

KAUL, THOMAS

body1945
JUDGMENT Thomas, C.J. and Kaul, J. - This is an execution of decree appeal against an appellate order dated the 25th of November, 1941, passed by the District Judge, Hardoi. 2. The material facts lie within a short compass. 3. On the 4th January, 1937, appellant No. 1 Ch. Ishrat AH, obtained a decree for a certain sum (due in respect of theka money) against the respondent opposite- party, Maulvi Saiyed Raza. On the 25th of September, 1937, Ishrat Ali transferred the decree under a deed of assignment in favour of some of the remaining appellants, 2 to 11, and the predecessors-in-interest of others. On the 23rd of August, 1940, an application purporting to be under Order 21 rule 16 of the CPC was made for execution of this decree by Ch. Ishrat Ali and the other appellants. It was prayed that the names of the transferees be substituted for "that of Ishrat Ali and execution levied against the judgment-debtor. Moulvi Saiyed Razi preferred objections against the application. A number of pleas were urged only two of which need be mentioned here. It was contended that the transferees could not execute the decree in view of the provisions of Section 296 read with entry No. 10 of List 2 of Schedule II of the U. P. Tenancy Act, because the assignor's interest in the land to which the decree related was -.not transferred to the assignees; and Ch. Ishrat Ali having transferred the decree had no interest left therein which would entitle him to execute the same. Both the Courts below the learned Assistant Collector and the District Judge have, however, upheld these contentions with the result that the application for execution was dismissed. The present appeal has accordingly been preferred by both the assignor and the assignees against the order of the first appellate Court. 4. Having heard the learned Counsel for the parties and given the matter our careful consideration we are of opinion that the appeal should be allowed. It was contended on behalf of the appellants that a decree-holder's right to execute a decree does not come to an end by an assignment of the decree to another person till the right of such transferee to execute it is recognised by the Court. It was contended on behalf of the appellants that a decree-holder's right to execute a decree does not come to an end by an assignment of the decree to another person till the right of such transferee to execute it is recognised by the Court. The question, therefore which emerges for consideration is what is the effect of transfer of a decree by a decree-holder to another person on the right of the original decree-holder to apply for execution. In view of the definition of the term "decree-holder" contained in the Code of Civil Procedure, 1908, (Section 2 -sub-Section (3)) it cannot be disputed that by taking an assignment from a person in whose favour the decree was passed the assignee does not become a decree-holder. Considering the matter on principle it appears that when a money decree is passed in favour of A against B, the Court decides that B is liable to pay the sum of money mentioned in the decree to A, and that A is entitled to receive the same from B. Simultaneously there comes into existence a right in A to apply for execution of the decree and thus to enforce payment pf the money (see Section 51 of the Code of Civil Procedure). It being clear that the assignment does not make the assignee a decree-bolder- or entitle him to apply for substitution of his name in the judgment or the decree in place of the original decree-holder, what right does the assignee acquire? That the law permits an assignment of a decree cannot be doubted"(see Section 49 of the Code of Civil Procedure); and though the assignee does not become a decree-holder, he is put in a position to make an application for its execution. This puffer is conferred upon him by Order 21 rule 16 of the Code of Civil Procedure. There is, however, nothing in the law to suggest that though the transferee of a decree becomes entitled to apply for execution as a consequence of assignment of the decree, the original decree-holder thereby becomes incapable of making an application for its execution. This puffer is conferred upon him by Order 21 rule 16 of the Code of Civil Procedure. There is, however, nothing in the law to suggest that though the transferee of a decree becomes entitled to apply for execution as a consequence of assignment of the decree, the original decree-holder thereby becomes incapable of making an application for its execution. On the other hand there is a long string of cases which lay down that so long as a transferee's rights to execute a decree is not recognised by the Court, it is the original decree-holder who can make an application for execution, Jiari Krishnamurti v. Akella Suryanarayanamurti (1920) 43 Mad 424 at 426, Ejaz Husain v. Shahzamatt Mirza (1913) 16 O C 70 at 72, Fakir Mohammad Khan v. Pirdad Khan A I R 1924 Lah 615; Gopi Chand v. Mehr Chand A I R 1931 Lab 116 and T. S. Art Chetty v. Theerthantalai Chetty (1916) 34 I C 791 at 792. As observed by Pigott, Judicial Com- missioner, in Ejaz Husain v. Shahzaman Mirza (1913) 16 O C 70 at 72: There are two distinct principles of law involved. On the one band, as was clearly laid down in Badri Narain v. Jai Kishen Das (I L R 16 All. 483) and in Sadagopa Chariar v. Raghunatha Chariar (I L R 23 Mad. 62), it is the assignment in writing from the decree-holder and not the recognition of the assignee by the Court as a representative of the decree-holder which confers upon such transferee the status of representative . of a party to the suit, and the transfer takes effect from the date of the instrument by which it was effected and not from the date of its recognition by the Court. - On the other hand, so long as the transferee does not seek execution of the decree, the parties to the decree are bound by the terms of the decree itself, and the Court has no power to go behind it, or to enter into questions beyond the scope of the decree. This was laid down by Mahmood J. in Rant Sahay v. Gayal (I. L. R. 7 All., 107). 5. It is the latter view which appears to us to be the more correct and consistent with the principle of sanctity of decrees. This was laid down by Mahmood J. in Rant Sahay v. Gayal (I. L. R. 7 All., 107). 5. It is the latter view which appears to us to be the more correct and consistent with the principle of sanctity of decrees. Whatever might have been the position under the old Code of 1882, when the term "decree-holder" included a transferee of a decree, the alteration in the definition of that term introduced by the Code of 1908 makes it clear that the transferee of a decree does not, as a result of the assignment in his favour, become a "decree-holder," and there is nothing in the law to indicate that the right to apply for execution of his decree, conferred upon a decree-holder by Section 51 of the CPC simultaneously with the passing of the decree, ceases to exist as a result of the assignment. It is significant to note that in Section 51 the expression used is "decree-holder" which does not include the transferee of a decree. It is, therefore, clear that the transferee's right to mike an application for execution of the decree is acquired under Order 21 rule 16. This rule regulates procedure and does not affect substantive rights, and though the transfer of a decree operates from the date of the transfer the transferee cannot execute it until he has obtained an order under that rule (see Mulla's CPC page 766, 11th Edn.). It may be that after recognition is-accorded by the Court to the transferee of a decree, and the transferee is allowed to execute it under Order 21 rule 16, the Court will not entertain an application by the original decree-holder for execution of the same decree. But so long as this is not done, the decree-holder's right to apply for execution of his decree remains unaffected. In the present case, in view of the provisions of Section 296 of the U. P. Tenancy Act, the Court-executing the decree not only did not but could not recognise the right of the transferee to apply for execution unless the assignor's-', interest in the land to which the decree related had become vested in the assignee. Accordingly we *Fe clear that Ch. Ishrat Ali had a right to apply for execution when the application which has given rise t6 this appeal, was made on the 23rd of August, 1940. Accordingly we *Fe clear that Ch. Ishrat Ali had a right to apply for execution when the application which has given rise t6 this appeal, was made on the 23rd of August, 1940. The decree -of a Court of law, though property,, is distinguishable from other kinds of property, and rights of the transferor and the transferee of a decree differ in many respects from those of an assignor or assignee of other property, moveable or immoveable. The appellant's .first contention must, therefore, be upheld. 6. It was further contended by the learned Counsel for the appellants that inasmuch as the assignment in favour of the transferee was made by Ch. Ishrat All before the U. P. Tenancy Act came into force, the provisions of Section 298. of the said Act could not take away a right which had become vested in the assignees of the decree".. The terms of the section are clear. Under it any decree passed under the Oudh Rent Act, 1886, or Agra Tenancy Act, 1926, which was not satisfied in full at the commencement of the U. P. Tenancy Act could be executed only in accordance with the provisions found in the last mentioned Act corresponding to the provisions of the two earlier mentioned Acts, and if there was no such corresponding provision the proceedings relating to such a decree, if pending at the date of coming into force of the Tenancy Act, were to be quashed. If follows, therefore, that any proceedings relating to the execution of a decree could, after the pas- sing of the U. P. Tenancy Act, be taken only under the provisions of that Act and not otherwise. This is a provision relating to procedure and as is well settled no one has a vested right in procedure. The rule laid down for execution of a decree under the U. P. Tenancy Act is that no such application can be made by an assignee of the decree unless the assignor's interest in the land to which it relates has become and is vested in such assignee. This is a condition which must be fulfilled by an assignee who makes an application for execution of a decree under the present Act. It is not disputed that the land to which the decree in question relates has not become vested in the transferee of the decree. This is a condition which must be fulfilled by an assignee who makes an application for execution of a decree under the present Act. It is not disputed that the land to which the decree in question relates has not become vested in the transferee of the decree. The result therefore is that no application can be made for execution of the decree in question by the assignees-opposite-parties Nos. % toll. In view, however, of the conclusions arrived at by us in the first portion of this judgment, the appeal is allowed. The case shall go back to the Court of the Assistant Collector with the direction that the application for execution dated the 23rd August, 1940, should be restored at its original number and Ch. Isharal Ali given an opportunity to amend the same in the light of observations made in this judgment. Alter this is done, it shall be disposed of in accordance with law. Ch. Ishrat Ali will get his costs in all the Courts from the respondent Moulvi Saiyid Raza.