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2007 DIGILAW 1294 (PAT)

Chandu Lal v. Ajay Kumar Sinha

2007-08-07

MRIDULA MISHRA

body2007
Judgment 1. Heard counsel for the petitioner and the opposite parties. 2. This revision application is directed against the order dated 11.8.2005 passed by Execution Munsif, 1st, Patna in Execution Case No. 23 of 2000 allowing the petition filed by opposite party no. 2 Manoj Kumar Gupta for being impleaded as codecree holder in execution proceeding" 3. Title eviction suit no. 52 of 1989 was filed by Nawal Kishore Prasad Sinha. opposite party no. 1 which was decreed against the defendant/petitioner. Opposite party no. 1 filed Execution Case No. 23 of 2000 for executing the decree passed in Title Eviction Suit No. 52 of 1989. The judgment and decree passed in the eviction suit was challenged by the defendant/ petitioner in Title Appeal No. 112 of 1999. During the pendency of the execution case the decree holder transferred the suit premises in favour of Manoj Prasad Gupta, opposite party no. 2. The transferee opposite party no. 2 filed an application under Order 21 Rule 16 read with Sec. 151 of Civil Procedure Code with a prayer to implead him as a co-decree holder in the case. By the impugned order it has been allowed. 4. Petitioners case is that since the opposite party no. 2 was not party in eviction suit and the decree was not passed in his favour he could not have been impleaded as decree holder for executing the decree. He has no locus standi to make a prayer for executing the decree. Further it has been contended that from the recital in the sale deed executed in favour of opposite party no. 2 it is apparent that he is already in possession of premises in the circumstances there is no reason for him to join in the execution proceeding as co-decree holder for delivery of possession through process of the court. Other ground taken for assailing the impugned order is that the decree holder has sold only his right, title in the suit premises and has not assigned the decree as such the purchaser has no locus to make a prayer for execution of decree. The impugned order has been passed without considering the provisions under Order XXI Rule 16 of Civil Procedure Code and the opposite party no. 2 has been allowed to be impleaded codecree holder, it is erroneous without jurisdiction and fit to be set aside. 5. The impugned order has been passed without considering the provisions under Order XXI Rule 16 of Civil Procedure Code and the opposite party no. 2 has been allowed to be impleaded codecree holder, it is erroneous without jurisdiction and fit to be set aside. 5. In support of his submission the counsel for the petitioner has placed reliance on a decision in the case of Jugal Kishore Saraf vs. M/s Raw Cotton Co. Ltd. (AI.R. 1955 S.C. 376). Facts leading to this decision was that the persons named Mohamedali Habib and Sakrekhanoo Mohamedali Habib used to carry on business as merchants in bullion and cotton at Bombay under name and style of Habib and Sons. In 1948 that firm instituted a suit in the Bombay City Civil Court, being Summary Suit No. 233 of 1948 against Jugal Kishore Sarraf for recovery of Rs. 7,11,370 with interest at 6.7 per annum, said to be due by him to firm in respect of certain transaction in gold and silver. When the summary suit was still pending a document was executed whereby it was agreed that the two partners would transfer and M/s Raw Cotton Co. Ltd. (the respondent company) would accept the transfer of "inter alia" all book and other debts due to them in connection with their business in Bombay and full benefit of all securities for the debts and all other property to which they were entitled in connection with the said business. The respondent company did not take steps under Order 22 Rule 10 C.P.C. to get themselves substituted as plaintiffs in the place and the original plaintiffs name remain on record but allowed the suit to be continued in the name of the original plaintiffs. The two partners migrated from India to Pakistan and their properties vested in the custodian of Evacuee property. The decree was passed in favour of original plaintiff for the debts and interest. Subsequently the respondent company filed an application for execution under Order 21 Rule 16 C.P.C. and prayed that the court be pleased to declare the applicants the assignee of the decree as the decreetal debt alongwith other debts had been transferred by the plaintiff to the applicant by a deed of assignment dated 7.2.1949 which was confirmed by the custodian of evacuee property Bombay and order them to be substituted as the plaintiffs. 6. 6. In the background of these facts it was considered whether the respondent company were the transferee of the decree within the meaning of Order 21 Rule 16. It was held that Section 8 of Transfer of Property Act, does not operate to pass any future property, for that section passes all interest which the transferor can "then" i.e. at the date of the transfer, pass. There was thus no agreement for transfer and much less a transfer of a future decree by this document. All that was done by the transferors by that document was to transfer only the properties mentioned in clause 1 together with all legal incidents and remedies. The properties so transferred included book debts. A book debt which was made the subject matter of the pending suit did not, for that reason, cease to be a book debt and, therefore, it was also transferred but no decree to be passed in respect of that book debt was in terms transferred. In such a situation there was no room or scope -for the application of the equitable principle at all. The transfer in writing of a property which is the subject matter of a suit without in terms transferring the decree passed or to be passed in the suit in relation to that property does not entitle the transferee to apply for execution of the decree as a transferee of the decree by an assignment in writing within the meaning of Order 21 Rule 16. 7. Counsel for opposite party no. 2 has contended that the facts of the present case is completely different from the facts of the case in the referred decisions. In the present case decree holder has transferred his present right and title in the property after passing of decree in suit and not his future right. The suit was already decreed and thereafter the sale deed was executed with the recital that the exclusive possession of the property is being transferred in favour of the transferee. In the present case decree holder has transferred his present right and title in the property after passing of decree in suit and not his future right. The suit was already decreed and thereafter the sale deed was executed with the recital that the exclusive possession of the property is being transferred in favour of the transferee. "Order 21 Rule 16 provides that" Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree holder in the 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-holder: Provided that where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor. (Explanation.Nothing in this rule shall affect the provision of Section 146 and a transferee of right in the property, which is the subject matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule.)" 8. What l find that even if it is presumed that there is no assignment in writing oi decree the provisions of Section 146 of the C.RC. is there under which opposite party no. 2 having interest in suit property can pray for execution of decree. It has also been submitted that the decision which has been relied upon by the petitioner has no application in the facts and circumstances of the present case and the case of opposite party no. 2 is fully covered by decision reported in A.i.R. 1972 Patna 227 (Amardei Devi and Others vs. Ramnath Modi and Others). In this decision point for consideration was whether an assignee of some property could execute a decree for recovery of possession of the property, when the decree itself had not been assigned in the assignees favour. 2 is fully covered by decision reported in A.i.R. 1972 Patna 227 (Amardei Devi and Others vs. Ramnath Modi and Others). In this decision point for consideration was whether an assignee of some property could execute a decree for recovery of possession of the property, when the decree itself had not been assigned in the assignees favour. Considering several decisions of other High Courts as well as Supreme Court, including A.I.R. 1955 S.C. 376, it was held: "There was nothing in Order XXI Rule 16 which expressly or by necessary implication precluded a person, who claimed to be entitled to the benefit of a decree under the decree-holder but did not answer the description of being the transferee of the decree by assignment in writing or by operation of law from making an application for execution, which the person from whom he claimed could have made. S.C. 376." 9. This finding was recorded considering the application of Sec. 146 C.P.C. in the provision of Order XXi Rule 16 of C.RC. Anyone who is a transferee of right in property, which is subject matter of suit, can apply for execution of decree without separate assignment of the decree as required by Order XXI Rule 16. 10. The word "Assignment" has been much emphasized and hammered by the petitioner in order to show that the purchaser opposite party no. 2 has not been assigned the decree as such he cannot be allowed to be a co-decree holder for executing the decree. In reply the counsel appearing for opposite party no. 2 has referred the definition of word "Assignment" in Law Lexicon. "Assignment.Transferring the interest a man hath in anything to another. The term assignment, as ordinarily used, signifies the transfer, between living parties, of all kinds of property, real, personal and mixed, whether in possession or action, and whether made by delivery, endorsement, transfer in writing, or by parol, and includes as well the instruments by which the transfer is made as the transfer itself." 11. Submission of the counsel is that he transfer of interest in the property in itself is an assignment and there is no need of specific mentioning in the decree as assignment of decree in writing. Assignment only means transfer of interest of any kinds of property, which has duly seen made by executing a sale deed. The opposite party no. Submission of the counsel is that he transfer of interest in the property in itself is an assignment and there is no need of specific mentioning in the decree as assignment of decree in writing. Assignment only means transfer of interest of any kinds of property, which has duly seen made by executing a sale deed. The opposite party no. 2 has purchased the nterest of decree holder in property and can very well execute the decree as codecree holder. He has also been impleaded as a party in title appeal filed by the petitioner. Appeal being continuation of a suit, it cannot be said that the opposite party no. 2 is not a party to the suit. Once he has been impleaded as a party in the title appeal he could have rightly been allowed to be impleaded as co-de- cree holder in the execution proceeding. 12. Impugned order does not suffer rom any error. This application is accord- ngly dismissed.