SHANKAR HARI DESHPANDE Vs. DAMODAR VYANKOJI KULKARNI

JUDGEMENT

(1.) THIS appeal arises in execution of a decree obtained by one Meghraj against the predecessor-in-title of the present appellants. Meghraj filed a darkhast in 1926 to execute the decree against all the defendants and prayed for recovery of Rs. 2,000 and odd. Rs. 400 were recovered and thereafter the darkhast was disposed of as there were negotiations for compromise. On April 15, 1926, Meghraj assigned the decree to two persons Damodar and Maruti. On July 7, 1926, the present appellants, who are two of the judgment-debtors, paid Rs. 814 to one of the assignees, Maruti. In 1929 the other assignee Damodar alone filed darkhast No.160 of 1929 against defendants Nos. 1 and 5 only. He prayed for execution of the remaining part of the decree after giving credit for Rs. 400 received by Meghraj and Rs. 814 received by Maruti. That darkhast was disposed of on April 15, 1929. A third darkhast was filed in 1932 by Damodar alone against defendant No.2 only, and it was disposed of also on July 1, 1932, without any further execution. Thereafter the present darkhast was filed on November 21, 1934, by Damodar alone against the heirs of the deceased defendant No.6 and defendants Nos. 7 and8. The main contention raised by the judgment-debtors was that the darkhast was time-barred on the ground that the two previous darkhasts by Damodar alone in 1929 and 1932 were not maintainable in law as one co-assignee alone cannot apply for execution, and as they cannot, therefore, be regarded as steps-in-aid of execution, the present darkhast of 1934 being more than three years after the last maintainable darkhast of 1926 was beyond time. The principal question, therefore, is whether those two darkhasts were maintainable in law.

(2.) THE lower appellate Court had remanded this case for making Maruti, the co-assignee, as a party to these execution proceedings and for a decision as to what, and if so how much, right he had in the decree under execution. It was found that Maruti has one-third share and the present darkhastdar Damodar has two-thirds share in the decree, although in the deed of assignment the right, title and interest of the judgment-creditor have been transferred jointly in favour of the two transferees without any mention of their shares.

(3.) THERE is no express provision in the Civil Procedure Code which permits one of several assignees of a decree to execute the whole of the decree. The question then is whether the assignees would stand in the shoes of the decree-holder, and if so, the provisions of Rule 15 could be made applicable to them. It may be noted that this is not a case where only a part of the decree is assigned to two assignees, and therefore, the decision of this Court in Narandas Sunderdas v. Tejmal Bhagchand (1932) I.L.R. 53 Bom. 226, s.c. 35 Bom. L.R. 1162 would not apply. It is there held that an assignee of a portion of the decretal amount is not entitled to execute the decree. It is true that the lower Courts have now found that Maruti has got one-third and Damodar has got two-thirds interest in the decree. But the deed of assignment is passed to both of them jointly, and not in separate shares, and it was for that reason that Damodar applied to execute the whole decree in the two previous darkhasts.