DHARANI MUDALI Vs. MEENAMBA BAI AMMANI

JUDGEMENT

(1.) We shall deal with each of the objections to the application put in by the transferee decree-holder separately. The first point raised is that the assignee s right to execute the decree is res judicata by the orders, Exhibits G, H, Ia and IIa. We are of opinion that what was decided in every one of these orders was no more than that so long as an attachment on the decree sought to be executed subsisted, the assignee could not execute the decree. It is conceded that there was no subsisting attachment on the date of the present application except the attachment by Nilakanta Iyer. We are of opinion that Nilakanta Iyer s attachment had also ceased to subsist. He put in a petition to the Court abandoning the attachment. Any application, therefore, to execute the decree would not be barred by the rule of res judicata.

(2.) The most important objection argued is that the present application by the assignee is not maintainable because it does not come within the purview of Order XXI, Rule 16, which lays down that an assignee of a decree in writing may apply for execution and the Court may allow execution under the same rules and subject to the same conditions as a decree-holder may execute. The application in the present case by the assignee states that the amount due under the decree had been discharged by the sale by the judgment-debtors to the assignee of the mortgaged property (the decree being one on a mortgage) and asks the Court that satisfaction may be entered in respect of the whole decree, or of a portion in case it should be found that there is any valid objection to complete satisfaction being entered. The contention is that there is no provision in any section or rule contained in the Civil Procedure Code entitling the assignee to put in such an application. There is no reason why Section 146 of the Civil Procedure Code should not be applicable to a petition put in by the assignee of a decree. A decree-holder may, undoubtedly, apply for according satisfaction of the decree without putting in an application for execution. It stands to reason that his representative, the assignee, should also be entitled to do so. There is no necessity according to the Code for the assignee getting any previous order recognizing his assignment or his right to execute the decree before actually applying for execution or putting in a petition for recording satisfaction. We should certainly be prepared to hold, even apart from Section 146, that an assignee of a decree would be entitled to maintain an application of the kind in question in the absence of any provision preventing him from doing so.

(3.) In Ramachandra Aiyar v. Subramanya Chettiar 14 M.L.J. 393 which has been referred to on behalf of the appellant, Bhashyam Iyengar, J., says that the only application that a decree- holder can put in, is for execution of the decree under Section 232, Civil Procedure Code. The question in that case was whether an assignee of a decree could put in an application merely for getting his assignment recognised. The observation of the learned Judge was that no petition for such a purpose alone is provided for in the Code. A proceeding of that sort is quite superfluous as an assignee could apply for execution without such preliminary step. The learned Judge cannot be understood to have stated that there is no application that an assignee could put in except for execution. Any other application open to a decree-holder is equally open to his assignee. This contention must, therefore, be disallowed.