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1981 DIGILAW 54 (PAT)

Jaigobind Verma v. Tejpal Sarawagi

1981-02-26

SATYESHWAR ROY

body1981
Judgment 1. The judgment-debtor filed this application challenging the legality of the order dated 5.01.1981 by which the executing Court has allowed the application of the opposite party to be substituted as decree-holders in place of the original decree-holder. 2. The suit was filed by Nagarmull Sarawagi against the petitioner for eviction from a building. Nagarmall Sarawagi filed the suit as the agent of the owner of the property, Sagarmull Bhatia. The suit was decreed and Nagarmall Sarawagi levied an execution case, registered as Execution Case No. 24 of 1977. On 28.03.1980, during the pendency of the execution case, Nagarmall Sarawagi died. The petitioner filed an application on 24.0.1980 that as the decree-holder, Nagarmall Sarawagi died, the execution case should be dismissed. On 10.06.1980 a petition was filed on behalf of the opposite party stating therein that they are sons of late Nagarmall Sarawagi and they prayed for substitution of their names in place of the original decree-holders. The petitioner filed a rejoinder stating therein that the petitioner had no locus standi to file the application for being substituted because Nagarmall Sarawagi was only an agent of the real owner of the property and the petitioners being the sons of the agent cannot be substituted. Only the real owner can be substituted in place of Nagarmall Sarawagi. On 16.08.1980 the opposite party filed an application stating therein that by registered sale deed dated 10.06.1975 the owner of the suit property had transferred the same in their favour and they being the owner of the property are entitled to proceed with the execution case. The Court below by the impugned order, after hearing the parties allowed the prayer of the opposite party. 3. Mr. N.K. Prasad, learned counsel appearing on behalf of the petitioner submitted that the decree has not been transferred by assignment in writing by Nagarmall Sarawagi in favour of the opposite party nor such transfer has taken place by operation of law as provided under O.21, R.16 of the Code of Civil Procedure (the Code). The opposite party, therefore, could not he substituted in place of the original decree-holder. Mr. Mazumdar, learned counsel appearing on behalf of the opposite party conceded that this rule has no application to the present case. Under the provision of Sec. 146 of the Code, he contended, the opposite party has right to execute the decree. To this, Mr. The opposite party, therefore, could not he substituted in place of the original decree-holder. Mr. Mazumdar, learned counsel appearing on behalf of the opposite party conceded that this rule has no application to the present case. Under the provision of Sec. 146 of the Code, he contended, the opposite party has right to execute the decree. To this, Mr. Prasad contended that since the opposite parties are not claiming under the decree-holder, Nagarmall, who was merely an agent of Sagarmall Bhatiya, real owner, that section has no application to the present case. 4. The admitted facts are that Sagarmall Bhatiya was the real owner and Nagarmall Sarawagi filed the suit as an agent. During the pendency of the suit the property in suit was transferred by Sagarmall Bhatiya in favour of the opposite parties who happen to be the sons of Nagarmall Sarawagi. The question, therefore, that arises in this case is whether the transferee from the real owner during the pendency of the suit can execute the decree passed in favour of the agent of the real owner. Reference was made at the Bar to the case of Jugal Kishore Saraf V/s. Rao Cotton Co. Ltd., AIR 1955 SC 376 and the case of Sm. Saila Bala Dassi V/s. Sm. Nirmala Sundari Dassi, AIR 1958 SC 394 . 5. The admitted case is that Nagarmall Sarawagi was the agent of the real owner, Sagarmall Bhatiya, and the authority of Nagarmall Sarawagi terminated on his death. On the death of the agent, Nagarmall Sarawagi, his principal Sagarmall Bhatiya was certainly entitled to the benefits under the suit, for the general principle is that all advantages made by the agent are for the benefit of the principal. The suit property was transferred during the pendency of the suit by the real owner and the transferees did not take any step to get them substituted either in the suit or in the appeal or in the execution case till Nagarmall Sarawagi died. By their conduct the transferees accepted Nagarmall Sarawagi as their agent and Nagarmall Sarawagi by his conduct accepted the transferees as his principals. Therefore, the opposite party was entitled to all benefit made by Nagarmall Sarawagi. 6. What is the effect of the transfer made by the real owner in favour of the opposite party during the pendency of the suit? Therefore, the opposite party was entitled to all benefit made by Nagarmall Sarawagi. 6. What is the effect of the transfer made by the real owner in favour of the opposite party during the pendency of the suit? Answer to this question will be found in the case of Jugal Kishore Saraf, AIR 1955 SC 376 (supra). It has been held by the Supreme Court that after the transfer was effected the transferee became the owner of the subject-matter of a pending suit and the transfer under the Transfer of Property Act carried all the legal incidents and the remedies in relation to subject-matter of the suit. In the case of Sm. Saila Bala Dassi ( AIR 1958 SC 394 ) (supra), the Supreme Court observed that Sec. 146 of the Code was introduced for the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. Since that is the position in law, there is no difficulty in holding that the opposite party was entitled to execute the decree after the death of Nagarmall Sarawagi, 7. In the result, the application is dismissed with cost assessed at Rs. 150.00 (one hundred fifty).