VARKEY VARKEY Vs. SUBBARAYA KAMMATHI

JUDGEMENT

(1.) This appeal arises out of a proceeding in execution of the decree in O.S. No. 2158 of 1110 and the execution application giving rise to it must be dismissed on the short ground that the court cannot allow the decree to be executed for a fractional share of the decree debt.

(2.) Respondent 1 obtained the above decree for rents and profits of certain properties and the decree gave a charge on the holding. He instituted the suit which gave rise to the decree as the head of a Hindu joint family and pending the suit the family effected a division whereby the claim put in suit was equally distributed among the three branches of the family. Under that division Respondent 1 got only a one-ninth share but none of the allottees came forward to get themselves impleaded in the suit and the decree as it stands is one passed in favour of Respondent 1 alone. The present execution petition was filed by Respondent 1 and another member of the family (Respondent 2) who under the partition referred to became entitled to a one-third share. The execution sought is only for a third share in the decree. The question for our decision is whether such execution can be allowed. Our answer is in the negative and that is sufficient to dispose of this appeal.

(3.) In support of our view reference may be made to the decisions in (16) ILR 1889 Cal. 341 ; (35) ILR 1913 All. 204 ; 1920 (55) IC 981 (Lah.) ; AIR 1921 Mad. 600 (F.B.) and AIR 1934 Bom. 59. These decisions show a marked divergence of judicial opinion on the question whether there can be an assignment of a part of a decree and as to whether such an assignee can be allowed to execute as a joint decree holder. The Allahabad, Lahore and the Bombay High Courts take the view that there cannot be such an assignment and that an assignee of a part of the decree cannot be allowed to execute the decree as a joint decree holder. The Calcutta and Madras High Courts take a different view that there can be an assignment of a part of the decree and the assignee can be permitted to execute the decree for himself and the other part-owners. But all these High Courts are agreed that there cannot be an execution for a fractional share of the decree-debt.