S HARJANG SINGH Vs. GOWARDHAN DAS

JUDGEMENT

(1.) This is a Letters Patent Appeal from a Judgment of Mr. Justice Falshaw given on the 20th of May 1948 in Execution Second Appeal No. 2348 of 1945.

(2.) The facts of the case are these. On the 6th of July 1933 one Major Shuja-ud- Din obtained a final decree on the foot of a mortgage. On the 18th of August 1943 the decree-holder executed an unregistered document purporting to assign the decree in favour of two persons Biahen Singh and Harnam Singh, and on the same day Bishen Singh and Harnam singh executed an unregistered document purporting to assign the decree to one Gowardhan Das. Gowardhan Das subsequently applied under Order XXI, Rule 16 of the Code of Civil Procedure to execute the decree but his application was rejected on the ground that the decree being a mortgage decree could not be assigned by an unregistered document. On the same day as the order of the Court dismissing the application of Gowardhan Das under Order XXI, Rule 16, Bishen Singh and Harnam Singh are said to have accepted Rs. 4,000/-from the judgment-debtor in lull and final settlement' of the decree. Ten days later the original decreeholder Major Shuja-ud-Din made a further transfer of the decree in favour of Bishen Singh and Harnam Singh, this time by a registered document, and on the same day Bishen Singh and Harnam Singh in turn transferred the decree in favour of Gowardhan Das also by a registered document. Gowardhan Das then filed a second application under Order XXI, Rule 16, which was resisted by the judgment-debtor on various grounds, the principal of which was that the decree had been fully discharged by the payment of Rs. 4,000/-received by Bishen Singh and Harnam Singh on the 22nd of July 1944.

(3.) The Executing Court held that as there was no valid transfer of the decree subsisting in favour of Bishen Singh and Harnam Singh on the 22nd of July 1944 there had been no satisfaction of the decree. The application of Gowardhan Das under Order XXI, Rule 16, therefore was allowed. In appeal to the District Court this order was reversed by the District Judge who held that Gowardhan Das was not a valid transferee of a subsisting decree. In second appeal to the High Court of Lahore a remand order was made for determination whether the payment of Rs. 4,000/- on the 22nd of July 1944 had in fact been made. The trial Court on remand held that this payment had been made. The matter again went to the District Court and the District Judge in his report supported the finding of his predecessor. The appeal then came before Mr. Justice Falshaw who held that the finding of the Executing Court that no valid assignment of the decree subsisted in favour of Bishen Singh and Harnam Singh on the date on which they gave the judgment-debtor his discharge was correct. He, therefore, allowed the appeal and restored the order of the Executing Court,