SHRI RAMBRIKSH SINGH Vs. SRIMATI FULKUMARI & OTHERS

JUDGEMENT

(1.) These two miscellaneous appeals arise out of two identical objections raised by different judgment debtors in the same execution and have been rejected by a common judgment by the court below. The two applicants have, thereafter, come to this Court. The respondent no. 9 Srimati Banskueri Devi filed a suit for partition claiming 1/5th share in the two items of property, namely, certain homestead and agricultural lands. A preliminary decree was passed in her favour on 8.2.58. Proceedings for preparation of final decree were started and a final decree was ultimately passed on 4 -8 -67, whereby the plaintiff was allotted an area of 276 acres out of agricultural land and a portion in the other property, that is, the homestead. On the 13th September, 1967, the plaintiff, by two registered sale -deeds, transferred 276 acres of agricultural land allotted in her share to the respondents 1 and 2, Srimati Fulkumari Bai and Sri Hridayadutt Pandey. These transferees put the final decree in execution, in Execution Case no. 3 of 1968. Two of the judgment -debtors, Ram Pravesh Singh and Rarabriksh Singh filed objections under Ss. 47, 151 and Order 21 Rule 16 of the Code of Civil Procedure challenging the maintainability of the execution. One of the points taken by them was that the sale deeds in favour of the transferees were collusive, without consideration and sham. This plea failed in the court below and has not been again pressed in this Court. The other objection was that the executants of the decree are not assignees of the partition decree itself and are mere transferees of certain items of property and hence cannot maintain the execution. The court below rejected this objection also.

(2.) Mr. Kailash Roy, appearing for the judgment -debtors -appellants has reiterated the second point pressed in the court below and has placed reliance upon a Division Bench decision of this Court in (1) Thakuri Gope and others V. Malik Mokhtar Ahmed and another (65 IC, 959). It is true that this decision, which mainly rests upon the interpretation of Order 21 Rule 16 of the Code of Civil Procedure supports the proposition that a transferee of a property covered by a decree is not an assignee of a decree itself, within the meaning of Order 21 Rule 16 of the Code of Civil Procedure and that the provision of Sec. 146 of the Code of Civil Procedure is subject to the provisions of Order 21 Rule 16 of the Code of Civil Procedure, and, consequently, the execution cannot be maintained by such a transferee. The main judgment was given by Mr. Justice Adami with whom Mr. Justice Backnill agreed, but with some reluctance. There were certain earlier decisions of the Court which appeared to Bucknill, J. as binding, but before closing his judgment, he added :

(3.) The expectation of Mr. Justice Bucknill came to be true when the point was considered by the Supreme Court in the case of (2) Jugalkishore Saraf V. M/s Raw Cotton Co. Ltd. (A.I.R. 1955 SC 376). While considering a similar point, the Supreme Court pointed out that the executant of the decree after transfer, which was a company in that case, was either a transferee of the decree in which case Order 21 Rule 16 of the Code of Civil Procedure came to its aid or if the company was not such a transferee, it can avail of the provisions of Sec. 146 of the Code of Civil Procedure. It was pointed out that there is nothing in order 21 Rule 16 of the Code of Civil Procedure which expressly or by necessary implication precludes a person claiming to be entitled to the benefit of a decree under the decree holder, although not an assignee of the decree itself from making an application, which the transferor could have made. It was held in that case that the transferor Company was not a transferee of the decree within the meaning of order 21 rule 16 of the Code, but was entitled to execute the decree on the strength of the transfer of the property covered by the decree. This view was followed by the Supreme Court again in the case of (3) Sm. Saila Bala Dassi V. Sm. Nirmala Sundari Dassi ( : A.I.R. 1958 SC 394) and later in the case of (4) Seth Loon Naran Sethiya V. Ivan R. John and others ( : A.I.R. 1969 SC 73) Mr. R.G. Chagla, learned Advocate appearing on behalf of the appellant in the case of Seth Loon Karan Sethiya emphatically argued that executing court could not go behind the decree, it has to execute the decree as it stands, and so far that is concerned, the person who can execute the decree is he whose name is shown in the decree, unless the decree itself had been transferred within the meaning of Order 21 Rule 16 of the Code. He challenged the correctness of the decision in Jugalkishore Saraf (Supra) and suggested that the case should be referred to a larger Bench." The Bench hearing him rejected the suggestion and followed the decision in Jugalkishore Saraf (supra) I, there fore, do not have any doubt that the law in this respect has been now finally laid down by the Supreme Court in favour of the transferee of the properties covered by the decree and the execution case in the court below is maintainable.