THIRUMAYEE Vs. J P MARASWAMY

JUDGEMENT

(1.) THIS Civil Revision Petition is filed under S. 115 of the Civil Procedure Code challenging an order of the learned Subordinate Judge, Erode, passed in E.P. No. 119 of 1982 in O.S. No. 132 of 1968, dated 21.7.1984.

(2.) BRIEF facts concerning the case are the following; One Sengoda Gounder and Muthusamy alias Sungini entered into an agreement to purchase the suit properties from defendants 1 to 4 in O.S. No. 132 of 1968, on the file of the Sub Court, Erode, on 9.1.1968. It is common ground that Sengoda Gounder was in possession of the suit properties, namely, four acres of land with some superstructure in a portion of the land as a tenant. On account of some difference of opinion, the said Muthusami who was defendant No. 5 in the suit (5th respondent herein) refused to cooperate with his partner Sengoda Gounder in enforcing the agreement of sale. Consequently, Sengoda Gounder filed O.S. No. 132 of 1968, on the file of the Sub Court, Erode, for specific performance of the agreement. While the suit was pending, defendants 1 to 4, owners of the property, have sold the property to defendants 6 and 7 in the suit. Ultimately, the suit filed by Sengoda Gounder for specific performance was decreed, directing the plaintiff (Sengoda Gounder), to deposit a sum of Rs. 36,000/- (balance of sale consideration) within six months from 23.9.1971. It appears that Sengoda Gounder could not raise the required money to comply with the condition. Hence he entered into an agreement with the first respondent herein on 19.11.1971 to sell two acres, i.e. half portion of the suit property within a month after getting the sale deed pursuant to the decree in O.S. No. 132 of 1968 from defendants 1 to 4. In the agreement, namely, Ex. A-1, it is stated that after receiving the amount for depositing the same into Court, the 1st respondent herein was put in possession of the land which was in the possession of Sengoda Gounder, Sengoda Gounder, after executing a will on 28.12.1972, died on.19.1.1973. Defendants 1 to 4 in O.S. No. 132 of 1968 (owners of the suit property) filed Appeal No. 739 of 1971, on the file of this Court, against the judgment and decree in O.S. No. 132 of 1968. That appeal was dismissed by this Court on 29.11.1978. Thereafter, the legal representatives of the deceased Sengoda Gounder did not take any steps to execute the decree for the specific performance by getting a sale deed executed by defendants 1 to 4 in that suit. Therefore, the first respondent herein filed E.P. No. 119 of 1982, claiming that he has a right to execute the decree by virtue of Ex. A-1. agreement. This Execution Petition was opposed by the legal representatives of the deceased Sengoda Gounder on the ground that Ex. A-1 agreement was not true and it was a forged one. The first respondent herein (petitioner in E.P. No. 119 of 1982) also pressed into service Ex. A-3, Will, executed by Sengoda Gounder in as much as there was a clause in the registered will admitting the execution of the agreement Ex. A-1 and directing his wife to honour the commitment in Ex. A-1 agreement. The legal representatives of the deceased Sengoda Gounder who are respondents 8 to 12 also challenged the legality and validity of the Will. It may be mentioned that Muthusami alias Sungini who is entitled to the other half of the suit property, did not object to the execution petition being filed by the 1st respondent herein. Likewise, the purchasers, pending suit, and also the owners of the suit property, did not object to the 1st respondent herein filing E.P. No. 119 of 1982. It may also be mentioned that the 1st defendant in the suit died pending E.P. No. 119 of 1982 and her legal representatives were brought on record subsequently. The executing Court, on the basis of the recitals found in Ex. A-1 and also in the light of Ex. A-3 Will found that the 1st respondent herein has every right to file the Execution Petition to execute the decree in O.S. No. 132 of 1968. Consequently, the executing Court directed the execution of the sale deed by the owners of the property and also the purchasers pending suit in favour of the respondents 1 and 5 herein.

(3.) THOUGH number of judgments were cited, I consider, the judgment in A.I.R. 1979 S.C. 1066 (supra), which has considered the two earlier judgments of the Supreme Court, is enough to support the above view. In the said decision, the Supreme Court has held as follows:? ?S. 146 reads as follows:? ?Save as otherwise provided by this Code or by any law for the time being in force, 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.? Shorn of unessential the section provides that where some proceeding could be taken or application could be made by a person under the Code of Civil Procedure any other person claiming tinder him is entitled to make and maintain such an application. The limitation in the exercise of this right is to be found in the expression ?save as otherwise provided by the Code?. It would mean that if the Code permits a proceeding to be taken or an application to be made by a party, then in the absence of a provisio n to the contrary, S. 146 would enable any one claiming under such person as well to make the same application. The object behind the section appears to be to facilitate the exercise of right by a person claiming under the person whose right to maintain an application is beyond dispute. S. 146 come in for consideration in Jagakishore Saraf v. Rao Cotton Co. Ltd. 1955 SCR 1369 AIR 1955 = SC 376. In that case the facts were that the plaintiff in a pending suit for recovery of debt transferred to another person all book and other debts due to them including the debt involved in the suit. The transferees did not apply to be joined as parties in the pending suit and the suit continued in the name of the original plaintiffs and ended in a decree. Subsequently the transferees as decree-holders applied for execution of the decree against the judgment debtor and upon a notice being issued, a contention was raised that the application was not maintainable under O. 21, R. 16. One submission was that even if the application for execution was not maintainable under O. 21, R.O. 16, it would certainly be maintainable at the instance of the transferees of the original debt under S. 146. Accepting this contention Das, J. observed that a person may conceivably become entitled to the benefits of a decree without being a transferee of the decree by assignment in writing or by operation of law. In that situation the person so becoming the owner of the decree may well be regarded as a person claiming under the decree-holder. It was further held in that case that transferees of the debt derived their title to the debt by transfer from the transfers and when the decree was passed in relation to decree they must also be regarded as persons claiming under the transfers and accordingly they would be entitled to make an application for execution under S. 146 of the Code of Civil Procedure. Bhagwati, J. in a separate and concurring judgment in this point observed that the only meaning that can be assigned to the expression save as otherwise provided by this Code in S. 146 is that if a transferee of the decree can avail himself of the provision contained under O. 21, R. 16 by establishing that he is such a transferee he must only avail himself of that provision. But if he fails to establish his title as a transferee by assignment in writing or by operation of law within the meaning of O. 21, R. 16 there is nothing in that provision which prohibits him from availing himself of S. 146 of the provision of that Section can be availed of by him. It would thus appear that if the sale deed in respect of land on its proper construction would show that the decree itself was assigned obviously the application for execution would be maintainable under Or. 21 R. 16. But if the appellants do not fail within the four corners of O. 21, R. 16 and they appear not to fail within the four corners of it, because though the land, the subject matter of the decree is sold to appellants, the decree itself is not assigned, they would none the less be able to maintain application for execution under S. 146, as persons claiming under the decree holder.? Again, the Supreme Court, in A.I.R. 1991 S.C. 373 (supra), on the scope of O. 21, R. 16 and S. 146 C.P.C, has held as follows:? ?O. 21, R. 16 next provides that where a decree or the interest of a decree holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it, and the decree may be executed as if the application were made by the decree-holder. The newly added Explanation to the said Rule makes it clear that the Rule shall not affect the provisions in S. 146 of the Code nor shall it affect a transferee of rights in prope rty, which is the subject-matter of the suit, from applying for execution of the decree without there being a separate assignment of the decree. In the present case, the document clearly shows that Matadin had to implead himself in place of the decree-holder as a party to the pending execution proceedings and then seek possession of the pre-emptional property. ?Matadin was substituted in place of the decree-holder after notice to the judgment-debt? or. He was, therefore, entitled to execute the decree.? In the light of the above discussion, I have no hesitation to come to the conclusion that the order of the Court below is right and does not call for any interference. The Civil Revision Petition is, therefore, dismissed. However, there will be no order as to costs.