KOCHIPPA AHAMED Vs. BAPPU KOCHUMMINI

JUDGEMENT

(1.) The question referred concerns the scope of the second proviso to R.16 of the O.21 of the Indian Code of Civil Procedure (Act V of 1908) (R.14 of the Travancore Code) which reads:

(2.) The facts are: The special appellant is the transferee of a decree passed on foot of a deed of hypothecation executed by deceased Pappu, a Muslim, father of defendants 1 to 4 to the 5th defendant to secure future subscriptions in a chitty. The hypothecateee transferred his rights to the 6th defendant who in his turn assigned them to the plaintiff. The decree directed recovery of the amount claimed and the costs of the suit (a) by sale of the first and third items of the hypotheca exonerating the second, (b) from the assets of the deceased Pappu, and (c) from the 5th defendant personally as also the assets of the chitty whereof he was the foreman. There was also a decree for costs against the first defendant who contested the suit. The second appeal arises out of an application for execution of the decree filed by the appellant as transferee. The first defendant resisted execution. His objection was that the assignment of the decree operated to discharge it and not to convey any right to the transferee because the consideration therefor was supplied by the second defendant from out of the funds forming part of the estate of deceased Pappu. The objection was overruled by the Munsiff owing to non compliance with a special provision contained in the Travancore Code of Civil Procedure in R.(i)(b) of O.21 which enacted that payment of money under a decree out of court to the decree holder should be by postal or anchal money order or on a registered receipt. The objectors appeal to the District Judge succeeded in securing a setting aside of the order for execution passed by the Munsiff and a remit of the case to him for fresh disposal after consideration of R.14 of O.21 a plea of non executability of the decree whereunder, the written objection of the first defendant as interpreted by the learned Judge was wide enough to comprehend. After remand parties adduced verbal and documentary evidence. The Munsiff found against the plea that the price of the transfer of the decree was from out of the estate of the debtor, deceased Pappu, and allowed execution. The District Judge in appeal by the first defendant concurred with the Munsiff on this point but differed from him and held that the assignment of the decree was taken with the money of the second defendant, benami for him. This circumstance, in the view of the learned Judge, attracted the second proviso to R.14 of O.21. He, therefore, allowed the appeal and dismissed the application for execution. The question of the user of the money of the estate of the debtor Pappu to obtain the assignment of the decree stands concluded by the concurrent findings of the courts below. The question that remains is whether a decree obtained against the assets of the deceased debtor represented by his legal representatives, defendants 1 to 4, who being Muslims inherited in definite shares would cease to be executable on a transfer thereof being obtained in the name of a stranger benami for one of the heirs.

(3.) The second proviso to R.16 of O.21 is the result of an addition of three words the payment of: to proviso (b) to S.232 of the Code of Civil Procedure, Act XIV of 1882. Instead of a decree for money in proviso (b) of the earlier Act we get a decree for the payment of money in proviso 2 in the later Act. In the first Indian Code of Civil Procedure, Act VIII of 1859, there was no prohibition to execution by a transferee as contained in proviso [b] to S.232 of Act XIV of 1882 or proviso 2 to R.16 of O.21 of Act V of 1908. The corresponding provision relating to the execution of a decree by its transferee in the Civil Procedure Code of 1859 is contained in S.208 which provided: