LAKSHMI Vs. MANAKKU VADHYAR

JUDGEMENT

(1.) The assignee decree holder, who is the appellant before me, filed E. P. No. 362 of 1950 in the court of the District Munsiff of Cochin for recognition of the assignment of the decree in her favour and for executing the decree. The 1st and 2nd respondents were the original decree holders and respondents 3 onwards the judgment - debtors. Respondents 1 and 2 are brothers and the appellant the wife of the 2nd respondent. Before the learned District Munsiff objections were taken by the 1st respondent that the transfer in favour of the appellant was not supported by consideration, but was only benami for the 1st respondent as far as his share was concerned; that since the decree was passed after the transfer in favour of the appellant, the appellant was not entitled to have the assignment recognised and to execute the decree as the assignee decree holder and that the appellant could not execute the decree under the provisions of the Code of Civil Procedure. The learned District Munsiff dismissed the petition on the sole ground that the transfer in favour of the appellant was pendente lite and therefore, could not operate as a transfer of the decree to be passed thereafter. This decision was confirmed in appeal, but in second appeal the High Court of Travancore-Cochin reversed the order of the lower courts and remanded the petition for fresh disposal on the evidence already on record. Thereafter, the learned District Munsiff considered the two main questions, namely the benami nature of the transaction and the applicability of the provisions of the Code of Civil Procedure and rejecting both the contentions of the 1st respondent, recognised the appellant as the assignee decree holder and allowed execution to proceed. The matter was taken up again in appeal by the 1st respondent and the learned District Judge of Anjikaimal reversed the decision of the learned District Munsiff on both the points and held that the transfer in the name of the appellant was only benami and that she could not successfully get herself impleaded as the assignee decree holder under the provisions of the Civil Procedure Code. The second appeal is against the said decision of the learned District Judge.

(2.) It would be of advantage to narrate a few facts to understand the question of law raised in this case. The 1st and 2nd respondents filed a suit against the other respondents for recovery of possession of the plaint property with arrears of rent after setting off the value of improvements due to the defendants. Pending suit, respondents 1 and 2 executed a deed of assignment, Ext. B, in favour of the appellant conveying thereby the plaint property and all the rights the vendors had therein. It was recited in the assignment deed that the suit against the lessees was pending and that the appellant might get herself impleaded as additional plaintiff in the suit and proceed with it. The consideration shown was Rs. 2,000/- paid in cash. The appellant, however, did not get herself impleaded in the suit and finally, the decree was passed in favour of the original plaintiffs, namely respondents 1 and 2. An appeal against that decree followed, wherein also the appellant before me was not a party, so that the decree stood in the names of respondents 1 and 2. It was under those circumstances that the appellant filed E. P. No. 362 of 1950, out of which the second appeal has arisen.

(3.) Mr. Chandrasekhara Menon, the learned advocate of the appellant, complains that the learned District Judge erred in holding that the appellant was not entitled to be recognised as the assignee dacree-holder. He contends that though O.21 R. 16 of the Code may not in terms apply to the present case, Sec. 146 of the Code applies and therefore, the appellant should have been impleaded as the person claiming under the original decree holders and been allowed to execute the decree. Apparently O.21 R. 16 may not in terms apply to this case, for, to apply the said Rule there must have been a decree and the interest therein of any decree holder must have been transferred by assignment in writing or by operation of law. Only in such cases the said Rule can apply. But S.146 of the Code is wider in scope, which lays down that where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. In this connection the appellant's learned advocate invites my attention to a decision of the Supreme Court in Jugalkishore Sararf v. M/s. Raw Cotton Co. Ltd. ( AIR 1955 SC 376 ), wherein the scope of S.146 and O.21 R. 16 came up for consideration and Das J. observed that the assignee of a debt was entitled to execute the decree eventually passed in favour of the assignor, even though the assignor did not convey the future decree. The learned Judge observed further that where during the pendency of a suit for recovery of a certain amount from the defendant the plaintiff in the suit transfers to third persons all books and other debts due to him, the transfer of the debts passes all the interests which the transferor was then capable of passing in the debts and in the legal incidents thereof. In such cases the assignee of the debts was according to Das J. entitled to apply for execution of the decree, that came to be passed later, under S.146 of the Code, though there was no equitable transfer of the decree to be passed. Imam J. also appears to have expressed the same opinion. Bhagwati J. went further and observed that the assignee of the debt could claim to be the transferee of the decree itself and could claim to execute the decree even under O.21 R. 16 of the Code. Therefore, even in the view expressed by the two learned Judges in the decision of the Supreme Court, it is clear that the appellant can claim to execute the decree as a person claiming under the original decree holders. It follows that, at any rate, S.146 of the Code applies. This view has been followed by the Calcutta High Court in Hindusthan Commercial Bank Ltd. v. Laxmi Narayan Saha ( AIR 1957 Cal. 72 ) and by a Division Bench of this Court in Chinnan Kesavan v. Gouri Amma ( 1958 KLT 787 = 1959 KLJ 612). Therefore, on this question, I hold that the view taken by the lower appellate court is wrong and the appellant is entitled to get herself impleaded and proceed with the execution if, of course, she is not a benamidar as contended by the 1st respondent,