INDIAN BANK Vs. RACHERLA HANUMANTHAPPA

JUDGEMENT

(1.) The appellant is the petitioner This appeal arises out of an application filed under section 50 and Order 21, rule 16, Civil Procedure Code, to bring on record the Indian Bank as 2nd petitioner-decree-holder to continue the execution proceedings. The facts leading to the filing of this petition may be briefly stated. R. Hanumanthappa and R. Agangappa, respondents 7 and 8 in E. P. No. 7 of 1965 and G. Narayanappa, father of respondents 1 to 5 in the said E. P. executed pronote in favour of Rayalaseema Bank. Rayalaseema Bank transferred the pronote in favour of Sankar Goud for collection. Sankar Goud filed O. S. No. 91 of 1951 in Sub-Court, Bellary and the decree was passed in 1953. As the functioning of the Rayalaseema Bank was not satisfactory the assets and liabilities of the Rayalaseema Bank were amalgmated with Indian Bank in 1961 under section 45 (6) of the Indian Banking Companies Act. Sankar Goud Gave power of attorney to one K. L. Narasingarao to execute the decree on his behalf and Narasingarao was in the srvice of Rayalaseema Bank at Bellary branch Indian Bank was paying for expenses for execution of the decree and Narasingarao was remitting the sale-proceeds of the judgment debtor's property to the credit of Indian Bank. Sankar Goud died on 26th February, 1971. In the application filed by the Indian Bank to bring on record the Bank as decree-holder the 3rd respondent filed a counter and respondents 4 to 6 adopted the same. The main plea of the respondents is that the present application should have been filed in the Court which passed the decree and unless the original Court which passed the decree recognises the Indian Bank as a transferee, of the decree, the present application is not maintainable. It is also further averred that Sankar Goud died on 26th February, 1971, and the present application filed to continue the execution proceedings 9th April, 1975, is barred under Article 137 of the Limitation Act. The point that was considered by the Court below is whether Order 21, rule 16 or section 146, Civil Procedure Code, applies in the circumstances. After consideration of the facts and circumstances in the case the Court below held that Order 21, rule 16, Civil Procedure Code, is applieable and hence the application of Indian Bank should be filed in the original Court viz., Sub-Court, Bellary which passed the decree, to recognise them as transferee of the decree. It is also further held that the application filed three years after the death of Sankar Goud is barred under Article 137 of the Limitation Act.

(2.) The learned Counsel for the appellant contended that the Indian Bank should be brought on record under section 146, Civil Procedure Code, in the facts and circumstances of the case and the question of applicability of Article 137 of the Limitation Act, does not arise. The learned Counsel for the respondent contended that section 146, Civil Procedure Code, is not applicable in the circumstances and further in the application to come on record filed beyond three years from the death of Sankar Goud is barred under Article 137 of the Limitation Act and factually the interest did not devolve on the Indian Bank on the death of Sankar Goud.

(3.) The learned Counsel for the appellant referred to the decision in Baila Bala v. Nirmala Sundari, wherein the Supreme Court considering the ambit and applicability of section 146, Civil Procedure Code, held as follows :