CHAMBAKAKUTTY PILLAI Vs. RAJAIAN NADAR

JUDGEMENT

(1.) The only question that arises in this second appeal is whether the transferee of the equity of redemption of an item of immovable property can execute a decree for redemption obtained by the transferor. The learned Munsiff found against the transferee who sought to execute the decree. The learned District Judge took a different view relying on the decision in 1948 TLR 765 which held that the purchaser of certain immovable property would in law be the transferee of a decree in respect thereof. Mr. Madhavan Nair, the learned Counsel for the respondent, did not rightly attempt to support the decree appealed against on the ground on which it is based. The only persons who can execute decree are those mentioned in O.21, R.16 of the Code of Civil Procedure and it has been held uniformly by courts in India that the transferee of an immovable property is not a transferee of a decree in respect of that property within the meaning of that rule. Reference may be made to AIR 1924 Bombay 426, AIR 1926 Bom. 406, AIR 1927 Mad. 240 , ILR 7 All. 107, 30 Allahabad 28 and 1950 D.L.R. (Allahabad) Lucknow Bench 147.

(2.) The learned Counsel for the respondent, however, sought to support the judgment of the District Judge by relying upon S.146 of the Civil Procedure Code and contended that his client, namely, the transferee of the property, is a person claiming, under the decree holder within the meaning of that section and that though that Section starts by saying save as otherwise provided by this Code the provision contained in O.21, R. 16 is only an enabling provision and does not prohibit persons other than those contemplated in that rule from executing decrees. He relies upon a decision of the Madras High Court reported in AIR 1942 Mad. 21 in support of his contention. That is a decision of a Bench of the Madras High Court where the question arose as to whether the transfer of the rights of a plaintiff in two suits filed on foot of promissory notes stating the transfer to be of all the rights under the suits would enable the transferee to execute the decree passed in those suits. The learned Judge came to the conclusion upon an interpretation of the documents concerned in that case that the transfer was not merely of the actionable claim on foot of which the suit was brought but also of the prospective decrees that were to be passed in those suits and in that view notwithstanding the provisions of O.21 R.16, S.146 would enable the transferee to execute the decree. That case being distinguishable on the facts it is not necessary for us to consider the question as to whether the transferee of the rights of the plaintiff in a pending litigation can execute the decree or not. In this case, there is no transfer of any right in respect of any litigation. The transfer is merely of the rights in a certain item of immovable property. S. 8 of the Transfer of Property Act on which also reliance was placed by the learned counsel for the respondent will not obviously take in rights under the decree in respect of immovable properties obtained by the transferor. A mere perusal of the section would make the position obvious and it is not necessary to enter into any discussion on the question. The second appeal should therefore, be allowed, the decision of the lower appellate court set aside and that of the District Munsiff restored with costs throughout.