BHAGWANT BALAJI RAO Vs. RAJARAM SAJNAJI

JUDGEMENT

(1.) THIS is an appeal against the order of the District Judge of Ratnagiri reversing the order of the Subordinate Judge of Deorukh in Miscellaneous Application No.29 of 1939 and allowing the application of an assignee of a decree-holder to have the assignment recorded and for leave to execute the decree.

(2.) ONE Murari obtained a decree in Suit No.102 of 1935 against the opponents on March. 29, 1935, and he thereby obtained a declaration, that he was the owner of 2 1/3 pies share in the taxim out of dhada No.48 in the village of Angavali and that he was also entitled to Rs. 150 for the unpaid purchase money and to Rs. 226-7-5 for half the costs of the suit. On November 1, 1938, he assigned his right under the decree for the recovery of Rs. 150 for the unpaid purchase money and for the costs to one Rajaram who filed the present Miscellaneous Application No.29 of 1939, 'in a subsequent suit, No.317 of 1935, for partition to which Murari was a party no share was assigned to Murari. Thereupon Rajaram the assignee from the original decree-holder Murari filed the present application for recording the assignment and for leave to execute the decree. The application was purported to be made under Order XXI, Rule 16, of the Civil Procedure Code. The executing Court was of opinion that such an application was not competent, following the judgment of the Calcutta High Court in Radha Nath Das v. Produmna Kumar Sarkar [1989] 3 Cal 825. On merits the Court held that the darkhastdar being a transferee of a part of the decree was not entitled to execute the portion transferred to him. On both these grounds the application was dismissed. The assignee thereupon filed an appeal in the District Court of Ratnagiri, and the learned District Judge who heard the appeal held that in effect the applicant was a transferee of the whole of the decree and therefore could maintain the application. It does not appear on. record whether the question as to the maintainability of the application was argued before the learned District Judge, but having regard to the fact that the learned District Judge allowed the application, the objection does not appear to have been pressed before him. Accordingly the learned District Judge reversed the order of the lower Court and directed that the assignment should be recorded and the applicant granted leave to execute the decree in Regular Suit No.102 of 1935 as an assignee. It is against that order that the judgment-debtors have come in appeal.

(3.) ON the strength of this judgment it has been contended that an assignee may first ask the Court to recognise the assignment and after the assignment is recognised then apply for execution of the decree. This contention is, as I have already stated, opposed to the view of the Calcutta High Court in the case cited above. But even Mr. Justice B. J. Wadia contemplated that the application by a transferee must be for the execution of the decree and not merely be an application for the recognition of the assignment and for leave to execute the decree. An application made under Order XXI, Rule 16, must be for the execution of the decree and not merely for the recognition of the assignment and for leave to execute the decree. The learned Subordinate Judge says that the practice in this Court is to entertain applications of this kind but the practice, if such a practice prevails, is opposed to the provisions of Order XXI, Rule 16, of the Civil Procedure Code, and we are of opinion that an application made by an assignee of a decree must, under Order XXI, Rule 16, be for the execution of the decree. There is nothing in the judgment of Mr. Justice B. J. Wadia to suggest that there can be an original application merely for the purpose of the recognition of the assignment and for leave to execute the decree. In that view we think that the application in the form in which it was made by the assignee was defective. But the defect in any case appears to us to be a technical one especially in view of the fact that the practice prevailing in his Court, according to the learned Subordinate Judge, was to entertain applications of this kind. We therefore think that it would be unfair to penalise the assignee for following a practice which has hitherto been recognised as legal. Mr. Parulekar on behalf of the respondent-assignee has made an oral application that his client may be allowed to amend the application so as to conform to the requirements of Order XXI, Rule 16.We see no reason why this application should not be granted and the procedure regularised.