MOTILAL SHIVNARAYAN Vs. SANTARAM BALA

JUDGEMENT

(1.) THE short question which arises for decision in this appeal is whether the darkhast filed by the appellant is maintainable in law. A decree was passed in favour of one Parshuram and against the respondents. This decree provided that the respondents were to give to Parshuram possession of Section Nos. 19 and 107 before November 15, 1941. It further provided that as to Section Nos. 18, 87 and 90, if the respondents paid to Parshuram Rs. 1,000 before. October 28, 1942, they would be entitled to hold the said property as owners; otherwise the decree-holder after waiting for two months should take possession of those lands from the respondents. This decree was passed on October 28, 1941. The next day the decree-holder assigned his rights in respect of Section Nos. 18, 87 and 90 in favour of the present appellant for a consideration of Rs. 400. It is as an assignee of the said rights that the appellant has filed the present darkhast on June 11, 1946. Both the Courts below have held that the assignment in favour of the appellant amounts to a partial assignment and since a. partial assignment of a decree is not permissible, under the law, the darkhast filed by him is not maintainable. In coming to this conclusion both the Courts have relied upon a decision of this Court in -- 'narayandas v. Tejmal', AIR 1934 Bom 59 (A ). That is how the question which we have to consider is whether the partial assignment of the decree in question in favour of the appellant entitles him to claim execution of the decree under Order XXI, Rule 16.

(2.) IT would be convenient at the outset to consider this Question in the light of the material provisions of the Code of Civil Procedure. Order XXI, Rule 16, enables the assignee of a decree to apply for execution of the decree assigned to him. It provides that where a 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 in the same manner and subject to the same conditions as if the application were made by such decree-holder. It would be noticed that the assignee by act 'inter vivos' is placed on the same footing as the person or persons on whom the decree-holder's rights under the decree have devolved by operation of law. No distinction is made between these two cases of devolution of the decree-holder's rights. There can be no doubt that by operation of law the decree-holder's rights can devolve upon more than one person. Cases of devolution of estates in favour of more heirs than one are not unknown; and so wherever the decree-holder's rights have by succession vested in more heirs than one, they or any one of them would be entitled to apply to execute the decree under Order XXI, Rule 16, read, if necessary, with Order XXI, Rule 15. In other words, it would be no answer to the claim made by such an heir to execute the decree to say that he does not represent the whole of the decree-holder's interest in the decree. If that be so, it is difficult to see why such a limitation should be imposed on an assignee of the decree by act 'inter vivos'. In our opinion, therefore, looking at the scheme of Rule 16 of Order XXI, it does appear that this rule does not expressly prohibit the partial transfer of a decree in favour of an assignee.

(3.) IT is true that Rule 16 itself provides that when an assignee seeks to execute the decree, the decree may be executed in the same manner and subject to the same conditions as if the application had been made by the decree-holder himself. If a decree can be executed piecemeal, there is no reason why an assignee in whose favour part of the decretal rights have been transferred should not be entitled to execute the decree so far as it relates to the part assigned to him. It may be that if the decree is of such nature that it cannot be executed piecemeal different considerations may arise. Therefore, in dealing with the question as to whether partial assignment of any given decree is effective or not, it would always be necessary to consider the nature of the decree, the rights under which are partially transferred to the assignee. It would not be correct to lay down a general proposition either one way or the other.