CHINNAN KESAVAN Vs. GOURI AMMA

JUDGEMENT

(1.) The dispute as to the right to execute the decree in O. S.195/1950 on the file of the Nedumangad Munsiffs Court has given rise to this Second Appeal. The properties involved in the suit belonged to the original plaintiff and, as the owner of the equity of redemption of these properties, he instituted the suit for redeeming the properties from the defendant on payment of the redemption price due to the defendant. During the pendency of that suit, the plaintiff assigned all his rights in the equity of redemption of the properties, in favour of the appellant and directed him to get recovery of possession of the properties from the defendant on payment of the redemption price that may be found to be due to them. There was also a direction in the deed of assignment that the assignee may get himself impleaded as additional 2nd plaintiff in the suit and carry on further proceedings towards redemption of the mortgage and recovery of possession of the properties. However, the assignee did not get himself impleaded as the additional 2nd plaintiff at the trial stage of the suit. Subsequent to the passing of the decree in the suit, a joint execution application was filed by the original plaintiff and his assignee on 20-1-1953 (E. P. No. 26 of 1953). In that execution petition it was stated that the assignee, who is the present appellant, had become the owner of the decree and that he may therefore be impleaded as the additional 2nd plaintiff and allowed to execute the decree. This petition was opposed by the defendant on the ground that there has not been a valid transfer of the decree as contemplated by O.21, R.16, C. P. C., and that therefore the first plaintiffs assignee cannot be allowed to execute the decree. The execution court overruled this objection and held that the joint execution application filed by the original plaintiff and his assignee is in itself sufficient to operate as an assignment of the decree in favour of the present appellant and that he is entitled to proceed with the execution. On appeal by the defendant, the lower appellate court came to a different conclusion and held that there has been no valid assignment of the decree and that the first plaintiffs assignee is not entitled to execute the decree. The assignee has come up in Second Appeal challenging the correctness of the view taken by the lower appellate court.

(2.) The original plaintiff instituted the suit for recovery of possession of the properties on redemption of the mortgage in favour of the defendant on 1-4-1950. Subsequently all his rights in the equity of redemption of the properties were assigned by him in favour of the present appellant on 16-10-1950. The suit was pending even then and it was decreed only on 27-11-1951. Since the decree had not come into existence on the date of the assignment in favour of the appellant, it is obvious that the assignment could not be of the rights under the decree. There is also no specific agreement in the deed of assignment to transfer the rights under the decree that may be subsequently passed What is stated in the deed of assignment is that all the rights of the assignor in respect of the equity of redemption of the properties, including the right to prosecute the suit and to get recovery of possession of the properties from the defendant, have been transferred to the assignee. Such being the nature of the assignment, it cannot be said that under that document the interest of the decree holder in the decree was transferred by assignment in writing or by operation of law, within the meaning of O.21, R.16, C. P. C. It is mainly for this reason that the lower appellate court came to the conclusion that the assignee of the original plaintiff is not entitled to execute the decree in the case. The decisions in Chempakakutty v. Rajaian Nadar 1951 K. L T. 787= (1952) 7 D. L. R. T. C. 184 and in Oommen Chakko v. Avira Varghese. 1952 KLT 334 = (1952) 7 D. L. R. T C. 498) are no doubt in support of the view taken by the lower appellate court. In the first of these cases it was held that the transferee of an immovable property is not a transferee of a decree in respect of the property within the meaning of O. XXI, R.16, C. P. C., and consequently a transferee of an equity of redemption of an item of immovable property is not entitled to execute a decree for redemption obtained in respect of that property by the transferor. This decision was followed in the other case where also it was held that a transfer of property which is the subject matter of the suit, will not make the transferee an assignee of the decree which is subsequently passed in the suit, so as to entitle him to apply for execution of the decree under 0. XXI, R.16, C. P. C. In both these decisions the question whether, apart from the provisions of O. XXI, R.16, a transferee of the rights of a plaintiff in a suit is not entitled to execute the decree that may be subsequently passed in that suit, does not appear to have been considered. In fact, the real scope of S.146 of C. P. C, was not considered in all its implications in either of the above mentioned cases. In the first of those cases, reference was made to the decision in Mahanandi Reddi v. Venkatappa ( AIR 1942 Mad. 21 ) where the scope of S.146 had been considered and discussed. All the same, it was said that case was distinguishable on facts and, as such, the principle enunciated in that case could not govern the case in (1952) 7 D.L.R. T-C. 184. It appears to us that in the case of a transfer effected prior to the passing of the decree in the suit, the right of the transferee to execute the decree, has to be examined in the light of the provision contained in S.146 of C.P.C. even apart from the provisions of O. XXI, R.16. S.146 is much wider in its scope. It runs as follows: -

(3.) The above reasoning applies with equal force to the facts of the present case also. It was while the suit for redemption was pending that the present appellant had obtained an assignment of the entire rights of the original plaintiff in the suit properties. It was also expressly stated in the deed of assignment that the assignee was entitled to get himself impleaded as additional plaintiff in the suit and to continue the suit to its logical termination. Even though he did not get himself impleaded in the suit, it is clear that the decree passed in the suit should enure to his benefit only, the transferor plaintiff having continued the suit only as benamidar for the transferee. Clearly, therefore, the appellant is a person claiming under the decree holder and entitled to all the benefits under the decree He is therefore entitled under S.146, C. P. C., to execute the decree and to reap its benefits.