Shri Rambriksh Singh v. Srimati Ful Kumari — 1976 DIGILAW 77 (PAT)

JUDGMENT Lalit Mohan Sharma, J. These two miscellaneous appeals arise out of two, identical objections raised by different judgment debtors in the same execution and have been rejected by a common judgment by the Court below. The two applicants have, therefore, come to this Court. 2. The respondent No. 9 Srimati Banskueri Devi filed a suit for partition claiming 1/5 th share in the two items of property, namely, certain homestead and agricultural lands. A preliminary decree was passed in her favour on 8.2.58. Proceedings for preparation of final decree were started and a final decree was ultimately passed on 4.8.67, where by the plaintiff was allotted an area of 2. 76 acres out of agricultural land and a portion in the other property, that is, the homestead. On the 13th September, 1967, the plaintiff, by two registered sale-deed, transferred 2. 76 acres of agricultural land al1otted in her share to the respondents 1 and 2, Srimati Fulkumari Rai and Sri Hridaya Dutt Pandey. These transferees put the final decree in execution, in Execution Case No.3 of 1968. Two of the judgment-debtors, Ram Pravesh Singh and Rambriksh Singh filed objections under sections 47, 151 and Order 21 Rule 16 of the Code of Civil Procedure challenging the maintainability of the execution. One of the points taken by them was that the sale deed in favour of the transferees were collusive, without consideration and sham. This plea failed in the court below and has not been again pressed in this Court. The other objection was that the executants of the decree are not assignees of the partition decree itself and are mere transferees of certain item of property and hence cannot maintain the execution. The Court below rejected this objection also. 3. Mr. Kailash Roy, appearing for the judgment debtors appellants has reiterated the second point pressed in the court below and has placed reliance upon a Division Bench decision of this Court in Thakuri Gope and other Vs. Malik Mokhtear Ahmad and another, 69 I.C. 959. The Court below rejected this objection also. 3. Mr. Kailash Roy, appearing for the judgment debtors appellants has reiterated the second point pressed in the court below and has placed reliance upon a Division Bench decision of this Court in Thakuri Gope and other Vs. Malik Mokhtear Ahmad and another, 69 I.C. 959. It is true that this decision, which mainly rests upon the interpretation of Order 21 Rule 16 of the Code of Civil Procedure supports the proposition that a transferee of a property covered by a decree is not an assignee of a decree itself, within the meaning of Order 21 Rule 16 of the Code of Civil Procedure and that the provision of Section 146 of the Code of Civil Procedure is subject to the provisions of Order 21 Rule l6 of the Civil Procedure Code, and, consequently, the execution cannot be maintained by such a transferee. The main judgment was given by Mr. Justice Adami with whom Mr. Justice Bucknill agreed, but with some relutance. There were certain earlier decisions of the Court which appeared to Bucknill, J. as binding, but before closing his judgment, he added : "I think that it is perhaps a pity that the law appears to be as it is and it may be that later decisions will amplify what has already been stated with regard to the position, but as it does not seem to me that it would be right for me to put myself in opposition to what has already been held by so many learned judges, I therefore, do not feel that I can disagree." 4. The expectation of Mr. Justice Bucknill came to be true when the point was considered by the Supreme Court in the case of Jugalkishore Saraf Vs. M/s Raw Cotton Co. Ltd, A.I.R. 1955 S.C. 376. While considering a similar point, the decree after transfer, which was a company in that case, was either a transferee of the decree in which case Order 21 Rule 16 of the Code of Civil Procedure came to its aid or if the company was not such a transferee, it can avail of the provisions of section 146 of the Code of Civil Procedure. It was pointed out that there is nothing in Order 21 Rule 16 of the Code of Civil Procedure which expressly or by necessary implication precludes a person claiming to be entitled to the benefit of a decree under the decree holder, although not an assignee of the decree itself from making an application, which the transferor could have made. It was held in that case that the transferee company was not a transferee of the decree within the meaning of Order 21 Rule 16 of the Code, but was entitled to execute the decree on the strength of the transfer of the property covered by the decree. This view was followed by the Supreme Court again in the case of Sm. Saila Bala Dassi Vs. Sm. Nimala Sundari Dassi, A.I.R. 1958 S.C. 394 and later in the case of Seth Loon Karan Sethiya Vs. E. Jon and other, A.I.R. 1969 S.C. 73. Mr. M.C. Chagla, learned Advocate appearing all behalf of the appellant in the case of Seth Loon Karan Sethiya emphatically argued that executing Court could not go behind the decree, it has to execute the decree as it stands, and so far that is concerned, the person who can execute the decree is he whose name is shown in the decree, unless the decree itself had been transferred within the meaning of Order 21 Rule 16 of the code. He challenged the correctness of the decision in Jugal Kishore Saraf (supra) and suggested that the case should be referred to a larger Bench. The Bench hearing him rejected the suggestion and followed the decision in Jugal Kishore Saraf (supra). I, therefore, do not have any doubt that the law in this respect has been now finally laid down by the Supreme Court in favour of the transferee of the properties covered by the decree and the execution case in the court below is maintainable. 5. Mr. Kailash Roy raised another argument in support of the appeal. I, therefore, do not have any doubt that the law in this respect has been now finally laid down by the Supreme Court in favour of the transferee of the properties covered by the decree and the execution case in the court below is maintainable. 5. Mr. Kailash Roy raised another argument in support of the appeal. He stated that in the case before us the transferees did not get a transfer of the entire properties under the decree inasmuch as the homestead property has been retained by the original decree holder, The transferees, therefore, are not entitled to execute the decree by themselves without their transferor joining them in the execution case; and failing that in any event the transferees must execute the entire decree for the benefit of all the decree holders including the original decree holder and as that has not been done, the execution case is not maintainable. At the commencement of his argument. Mr. Roy relied upon the provisions of Order 21 Rule 15 of the Code which are in the following terms. "(1) Where a decree has been passed jointly in favour of more persons than one, anyone or more of such persons may, unless the decree imposed any condition to the contrary, apply for the execution of the whole decree for the benefit of them ail, or where any of them has died, for the benefit of the survivors and the legal representatives of the deceased. (2) Where the court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application." Later on, Mr. Roy developed the point in a slightly different form. It has been urged that on the language of Rules 10, 11, 13, 14, 17 and 35 of Order 21 and Sections 37, 38, 39, and 41 of the Civil Procedure Code, it must be held that a decree should be executed in its entirety in a single execution and it is not permissible to the decree holder, or decree holders, if there are more than one, to execute the decree piecemeal. It has been suggested that there is a very good reason for taking such a view, namely, that the judgment-debtor should not be permitted to be harassed by a multiplicity of executions. The proposition has been convassed before us in its broadest application. The argument is that if there is a single decree holder, he cannot be permitted to excecute the decree in several successive executions, and if there are more than one persons entitled to the execution of a decree, either as joint decree holders, or as assignees of the decree, or as transferees of properties covered by the decree, they all should join the execution for the entire decree or if some of them have to start execution by themselves, they will have to do it for the benefit of all persons entitled to the benefits of the decree. I have considered the argument at length and do not think that the contention is sound. The language of Order 21 Rule 15 of the Civil Procedure Code, quoted above, itself admits of an exception to the desirability of the execution of a decree in whole in case where the decree imposes a condition to the contrary. The opening words of the rule also indicate that the proposition can be applicable only to such decree which have been passed jointly in favour of more persons than one. For the consideration of the point, it will have to be examined as to the precise meaning of a joint decree and of the term "unless the decree imposes any condition to the contrary." Where the entire decree is sought to be executed by only some of the decree holders for the benefit of all of them, a further safeguard has been made in sub-rule (2). In case, where the decree is in respect of distinct and different properties, can it be said that it is such a joint decree which has to be executed all at once and a piecemeal execution will not be maintainable. 6. Mr. Kailash Roy conceded that Rule 15 of Order 21 of the Code does not govern the case of an execution by a transferee of a property and is, therefore, inapplicable to the appears before us. 6. Mr. Kailash Roy conceded that Rule 15 of Order 21 of the Code does not govern the case of an execution by a transferee of a property and is, therefore, inapplicable to the appears before us. He has placed different sections and rules of Order 21 of the Civil Procedure Code, mentioned above, in some detail, but I have not been able to discover any provision which might suggest that piecemeal executions are not legal. Although Rule 15 of Order 21 of the Code of Civil Procedure may not be applicable in terms, I consider that the analogous principles may be applied in the present case. The reason for holding that a joint decree should not be executed piecemeal, to my mind, is that it will be in many cases impossible and at any rate very difficult to execute a joint decree in portions in succesive executions, as the rights of the different parties would be difficult to be finally and equitably settled. But if a decree awards two or more different and distinct reliefs, the problem disappears. In such a case there does not appear to be any reason as to why successive piecemeal executions cannot be permitted. 7. Mr. Mahendra Pandey, learned counsel appearing for one of the respondent, cited before us the decision in Durga Prasad V. Gouri Shankar, AIR 1966 Raj 528. It was a case of a single decree holder who obtained a decree for possession of a house property and some agricultural land besides costs, and he was also awarded a decree in regard to a right of worship in a certain temple. In the first execution case, the decree holder put in execution the decree relating to right of worship only. Subsequently, another execution was started for grant of reliefs regarding possession of two items of properties and costs. The learned single judge, who decided the case, observed and with respect I say, rightly, that although there is no express provision in the Code of Civil Procedure laying down that separate and successive execution applications can be made, but there is no prohibition against it either. He further held that the Code of Civil Procedure is not exhaustive of all forms and procedure and relied upon the decisions in Sukhdeo Dass and others Vs. Rito Singh, A.I.R. 1917 Pat. 375 and Raghunandan Singh and others V. Parmeslnvar Dayal Singh, A.I.R. 1917 Pat. He further held that the Code of Civil Procedure is not exhaustive of all forms and procedure and relied upon the decisions in Sukhdeo Dass and others Vs. Rito Singh, A.I.R. 1917 Pat. 375 and Raghunandan Singh and others V. Parmeslnvar Dayal Singh, A.I.R. 1917 Pat. 495. As the different reliefs under the decree were considered to be separate and distinct the execution was held to be maintainable. The two Patna decisions, referred to in the Rajasthan judgment, do establish that the provisions of the Code of Civil Procedure arc not exhaustive and where a particular point has not been specifically dealt with by Court, the question must be determined upon general principles. Now that it has been firmly established that the transferees of specific properties covered by a decree are entitled to enforce the benefits under the decree under section 146 of the Civil Procedure Code, it must follow that they are entitled to such remedies in this regard by way of execution, which may not be prohibited by the Civil Procedure Code, expressly or impliedly. The learned counsel for the appellants has not been able to show us any such impediment in the way of the transferee respondents coming to the executing court and praying for possession of the property they have purchased. They have, in the execution petition in the court below, impleaded their vendor as an opposite party and she has no objection to the relief in the execution application being granted. The property sold to the transferees and the house property retained by the original decree holder are clearly separate and distinct properties and the reliefs granted by the decree in their respect are two different and distinct reliefs. In these circumstances, I hold that the principles applicable to a joint decree in respect of indivisible reliefs cannot be applied. 8. A similar question was also considered by the Bombay High Court in Motilal Shivnarayan V. Santaram Bala, A.I.R. 1954 Bom. 273. Although in that case, there was an assignment of the decree itself, and not of a specific property, but the principle would not be, for that reason, different. Mr. Justice Gajendragadkar (as he then was) explained the earlier Bombay decision in Panaji Girdharilal V. Ratanchand Hujarimal Marwai, AIR 1933 Bom. 273. Although in that case, there was an assignment of the decree itself, and not of a specific property, but the principle would not be, for that reason, different. Mr. Justice Gajendragadkar (as he then was) explained the earlier Bombay decision in Panaji Girdharilal V. Ratanchand Hujarimal Marwai, AIR 1933 Bom. 364 and laid down that if a decree was for two separate and distinct reliefs to the decree holder the two reliefs could be enforced by separate executions. Mr. Mahendra Pandey also cited before us the Division Bench decision in Smt. Chapala Devi V. Rakhal Chandra Sen Gupta, A.I.R. 1964 Pat. 383. In that case, a decree for eviction was passed in favour of several decree holders held separate shares in the house in question and an adjustment between some of the decree holders and the judgment debtor lessee had been made. The remaining decree holders put the decree, so far it was in their favour, in execution, and an objection to the maintainability of the same was taken by the judgment debtors. This Court over-ruled the objection and held that the execution was maintainable. Mr. Roy attempted to distinguish this case on the ground that there was a partial satisfaction of the decree and the remaining decree was being put in execution and the entire execution was, therefore, maintainable. It is true that the facts are a little distinguishable, but the principle that a decree can be executed in part by a co-plaintiff, according to the extent of his interest, has been affirmed. The decision in Hurrish Chandra Chowdhary Vs. Kali Sundari Debia, I.A. 4 was referred to and also appears to lend support to the view which I am taking. I accordingly hold that where the reliefs granted under a decree are in respect of two different and distinct properties, the decree can be executed in two executions brought in respect of each of the properties in question and that the principle regarding the prohibition of piecemeal executions of joint decree is not applicable to such a case; 9. In the result, both the appeals fail and are dismissed with costs. Birendra Prasad Sinha, J. I agree. Appeal dismissed.