R GANGAPPA Vs. INDIAN BANK

JUDGEMENT

(1.) This letters Patent appeal is preferred againstthe Judgment of Justice RamaRao. The matter arises in execution The appellant, who is the judgment debtor, had taken a loan from Rayala- seema Bank under a promissory note. The promissory note was endorsed in favour of one Shankar Goud, who obtained a decree on the foot of the promissory note in 1953. Subsequently he took out execution. The execution petition was transferred to the Court of the District Judge, Anantapur while the execution proceedings were pending in the Anantapur Court, Shankar Coud died. Mean while, all the assets of Rayalaseema Bank were taken over by the respondent bank herein viz. Indian Bank. Indian Bank then applied in 1975 for coming on record in the plece of Shankar Goud, who is the decree-holder. This application was made under Order 21 rule 16 C P C read with Sec. 50 CPC. This was opposed by the judgment-debtor and the application dismissed by the executing court. On appeal however, the learned single judge reversed the order of the executing court and relying upon section 146 C P C allowed the application filed by the respondent Bank to come on record as the decree holder.

(2.) In this appeal, it is urged that by virtue of sub-sec. (4) of section. 42, introduced by the Civil Procedure Code Amendment Act of 1976, the transferee court has no power to transfer the decree and that such a transfer can be ordered only by the transferor court. It is also stated that such a transfer cannot be ordered either under section 1 46 or under section 50 or under Order 21 rule 1.6. CPC. We are unable to agree. Firstly it may be noticed that sub-section (4) of section 42, which was introduced by the said amendment act was not there when the application for transfer was filed by the respondent Bank. Secondly, this provision was not brought to the notice of either the executing court or the learned single judge. Section 146 is quite general in nature and it perfectly warrants the transfer of the decree on the date the application was filed. Even order 21 rule 16 C P C is sufficient for the purpose. When the respondent Bank has taken over all the assets of the Rayalaseema Bank, no sesarate writing is necessary to transfer the decree. Section 146 C P C provides clearly that where any proceeding can be taken or application made by any person, then such proceeding can also be taken or application filed by any person claiming under him. Undoubtedly the respondent Bank is claiming under the Rayalaseema Bank which has endorsed the promissory note for collection to Shankar Goud.

(3.) It would also be seen that the objection is merely procedural in nature. The factum of transfer of the decree, in the sense that the respondent Bank has taken over all the assets of the Rayalaseema bank, is not disputed. The only objection is that the transfer can be ordered only by the transferor court and not by the transferee court. At best it is only a procedural objection which we are not inclined to entertain after a lapse of thirty years of the passing of the decree, more particularly, when sub-section (4) of section 42 was not there at the time the application for transfer was filed by the respondent-Bank and also because this provision was not brought to the notice of tha learned single Judge or the executing court. By this procedural wrangle, there is a likehood of the ends of justice being defeated and we are not inclined to allow the judgment-debtor- appellant to raise any objection under section 42 (4)C P C for the first time before us. The letters patent appeal accordingly fails and is dismissed.