LALA SRI RAM Vs. DHANI RAM GUPTA

JUDGEMENT

(1.) THIS appeal arises out of an order passed by VI Additional District Judge, Meerut in Execution Case No. 72 of 1963. The relevant facts are that Ratan Lal, respondent No. 5, transferred plot Nos. 335, 336, 337 and 338 to this appellant under a registered sale deed dated 25-3-1960 for a sum of Rupees 10,000/-. On 5-4-1960, an agreement of reconveyance was executed whereby this appellant agreed to reconvey the said plots to Ratan Lal for a sum of Rupees 15,000/- within a period of two years. For the enforcement of this agreement, Ratan Lal filed Suit No. 18 of 1961, which was decreed by the First Additional Civil Judge, Meerut on 17-4-1962. Appeal against this decree was filed in the High Court and during the pendency of this appeal, Ratan Lal transferred his rights in the decree to Dhaniram Gupta, respondent No. 1 and respondents 2 to 4 by means of a registered deed of assignment dated 26-4-1963 for a sum of Rs. 45,375/-. A sum of Rs. 15,000/- was left with Dhaniiam and others for payment to this appellant. The appeal was, however, dismissed by the High Court on 5-9-1963 On 17-12-1973, Dhaniram Gupta and others moved an application for execution in the Court of First Additional Civil Judge, Meerut under the provisions of Order 21, Rule 16, Civil Procedure Code. They claimed to be the assignees of the decree for Ratan Lal on the basis of the aforesaid deed of 26-4-1963. The notice of this application was issued to the appellant and also to the original decree-holder. The appellant filed an objection on 17-3- 1964 but the decree-holder, namely, Ratan Lal did not put in appearance. The hearing of this objection was started in the Executing Court but was not completed. During the pendency of these execution proceedings, Ratan Lal, the original decree-holder, moved another application of execution being execution case No. 35 of 1964 on 25-5-1964. In this execution case, a compromise was arrived at between the appellant and Ratan Lal on 26-5-1964 and this compromise was recorded by the court on 27-5-1964. By this compromise a complete satisfaction of the decree was recorded. Thereafter this appellant filed objection in the first execution case saying that because the decree had been satisfied, no execution by the so-called assignees was maintainable. The learned Civil Judge accepted this objection and dismissed the first execution started by Dhaniram Gupta and others by his order dated 9-10-1964. Dhaniram Gupta etc., went up in appeal against this order and the learned Additional District Judge by his order dated 8-10-1974 allowed the appeal and set aside the order of the executing court He has said in the order that the execution shall be restored and registered to its original number, and the executing court shall forthwith execute the decree according to its terms and conditions. Now the order of the Additional Dist. Judge is being challenged by the judgment-debtor in this Court.

(2.) ON behalf of the appellant, the main contention was that the view of law taken by the Additional District Judge was incorrect and it was also contended that the deed dated 26-4-1963 did not at all amount to assignment of the decree. The line of reasoning which has been adopted by the Lower Appellate Court is that after assignment the original decree-holder had no locus standi to enter into any compromise with the judgment-debtor. It has also been observed that it was not open to the original decree-holder to defeat the assignment by means of such a fraudulent and collusive compromise. Now, therefore, the short legal question which is really to be answered in this appeal is whether the original decree-holder by entering into a compromise had any right to give a valid discharge to the judgment- debtor after the assignment and what is that stage when the right of the original decree-holder after the assignment ceases. A reference should first be made to the provisions of Order 21, Rule 2 which say that if the payment or adjustment has been made outside the court, the decree-holder shall certify such payment or adjustment and the Court shall record the same accordingly. A plain reading of Rule 2 will thus make it clear that if the payment of adjustment is certified by the decree-holder the executing Court has no option but to record the same. Ordinarily speaking the executing Court is not expected to go into the question whether the decree-holder had or had not a right to certify such payment or adjustment in the instant case, of course, the adjustment was by compromise filed in the court and the same was recorded accordingly. The question now is whether after assignment, the right of decree- holder to accept payment or adjustment or to enter into a compromise ceases as soon as he executes a deed of assignment. For the present, I presume that the deed of 26-4-1964 does amount to an assignment. The learned Additional District Judge seems to have accepted this legal position that if no application for execution by the assignee is made, the original decree-holder can proceed with the execution. He has observed that the right of original decree-holder will remain intact till the assignment is found valid or if the assignee was sleeping over his rights and did not come forward to the court to execute the decree. If the assignment is not valid, then, of course, the assignee has no right. But if the assignee does not move the executing court for recognition of his right, the original decree-holder is allowed to execute the decree not because the assignee is sleeping over his right or because of his negligence but on the principle that the executing court will not ordinarily go behind the decree. It is settled law that a judgment-debtor will not be heard to say that the right in the decree has been transferred to anybody else. In other words, the executing court will execute the decree as passed and it will not go behind the decree unless the assignee comes forward to enforce his right. There is thus no doubt about the proposition that if the assignee does not come forward, the right of the original decree- holder to execute the decree remains intact

(3.) IN the result, the appeal is allowed and the order of the lower appellate court dated 8-10-1974 is hereby set aside and the order of the First Additional Civil Judge, Meerut dismissing the application of Dhaniram Gupta and others is hereby restored. The parties are directed to bear their own costs throughout. Appeal allowed.