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1952 DIGILAW 13 (KER)

Oommen Chacko v. Avira Varghese

1952-02-14

GOVINDA PILLAI, VITHAYATHIL

body1952
Judgment :- 1. The additional plaintiffs in O.S. No. 818 of 1112 of the Thiruvella Munsiff's Court are the appellants in this case. The appeal relates to a matter in execution. The decree was obtained by the Travancore Federal Bank Ltd., against the 1st defendant. The additional 2nd plaintiff was the manager of the Bank when the suit was filed. The suit was at first decreed on 15.10.1115. On the application of the 1st defendant it was restored to file and was again decreed on 30.3.1120. The present execution was filed by the additional plaintiffs 2 and 3 on 2.9.1950. It was alleged in the petition that the plaintiff bank had ceased to exist, that for the amount due to the additional plaintiffs from the bank the right to the amount covered by the decree has been assigned in their favour on 14.4.1939 and that they are therefore entitled to execute the decree. In the objection filed by the 1st defendant it was contended that the additional plaintiffs were not entitled to execute the decree, that the plaintiff bank was still functioning, that the allegation in the execution petition that the right to the amount covered by the decree has been assigned in favour of the additional plaintiffs was false, and that, even if it is true, it would not amount to an assignment of the decree. 2. The additional plaintiffs when filed C.M.P. 6765 on 26.6.1951 for amending the execution petition by deleting the statement therein that the plaintiff bank had ceased to exist on the date of the execution petition and that it had been wound up. Another petition also was filed on the same day, namely, C.M.P. 6842, for issuing notice of the execution petition to the present manager of the plaintiff bank. The first defendant filed objections to these petitions also. The court below disposed of C.M.Ps 6765 and 6842 and the execution petition by its order on C.M.P. 6765. The court held that since the plaintiff bank is still functioning and the additional 2nd plaintiff is admittedly not the present manager of the bank, and since the alleged assignment in favour of the additional plaintiffs was before the date of the decree, they were not entitled to execute the decree. The court held that since the plaintiff bank is still functioning and the additional 2nd plaintiff is admittedly not the present manager of the bank, and since the alleged assignment in favour of the additional plaintiffs was before the date of the decree, they were not entitled to execute the decree. As the execution petition would not be maintainable even if the amendment sought for was allowed the petition for amendment as also the petition for issuing notice to the present manager of the bank were dismissed. The execution application also was struck off. The appeal is from this order. 3. The present manager of the Federal Bank was also impleaded as additional 2nd respondent in this appeal and notice was issued to him. It is argued for the appellants that the court below has gone wrong in striking off the execution petition, in not allowing the amendment of the petition and in not issuing notice to the present manager of the plaintiff bank. 4. It is admitted that the additional 2nd plaintiff is not the present manager of the plaintiff bank although he was the manager when the suit was filed. He cannot therefore represent the bank and execute the decree on behalf of the bank. The other question for consideration is whether he and the additional 3rd plaintiff can execute the decree as assignees thereof. The allegation in the execution petition is that the right to the amount covered by the decree has been assigned in favour of the additional plaintiffs on 14.4.1939 corresponding to 1.9.1114. This was before the suit was decreed. It is well established that a transfer of property which is the subject matter of suit will not make the transferee an assignee of the decree which is subsequently passed in the suit so as to entitle him to apply for execution of the decree under O.21 R.16 C.P.C. For entitling a person to apply for execution under 0.21 R.16 the decree must have been transferred in his name by assignment in writing or by operation of law. It was so held by the erstwhile Travancore High Court in 25 T.L.J. 1125 Ramalinga Nadan v. Krishnan in which the question was elaborately discussed with reference to the rulings of the other Indian High Courts. This decision was followed in 12 T.L.T. 1341 Dominic v. Thomas. It was so held by the erstwhile Travancore High Court in 25 T.L.J. 1125 Ramalinga Nadan v. Krishnan in which the question was elaborately discussed with reference to the rulings of the other Indian High Courts. This decision was followed in 12 T.L.T. 1341 Dominic v. Thomas. The same view was held by this Court in 1951 K.L.T. 787 Chempakakutty Pillai v. Rajayyan Nadar. We are therefore of opinion that even if the allegation in the execution petition regarding the assignment of the right to the amount covered by the decree is true the additional plaintiffs cannot apply for execution of the decree under 0.21 R.16 C.P.C. The execution petition also cannot amount to an assignment of the decree so long as the additional 2nd plaintiff cannot represent the bank and assign the decree. The execution petition has therefore to be held to be not maintainable. 5. The amendment sought for is for deleting the statement in the execution petition that the plaintiff bank had ceased to function and that it had been wound up. We do not think that any useful purpose will be served by allowing this amendment. Even if the amendment is allowed the execution petition will not be maintainable so long as it is admitted that the additional 2nd plaintiff does not represent the bank. Similarly no purpose will be served by the issuing of notice to the present manager of the bank. It is left to the bank to execute or not to execute the decree. Learned counsel who appeared for the bank in this appeal submitted that the appellants are not entitled to execute the decree. 6. In the circumstances we find no reason to interfere with the orders passed by the court below dismissing the execution petition and the other petitions filed by the additional plaintiffs. The appeal is therefore dismissed with costs. Dismissed.