RAMANATHAN CHETTYAR Vs. RAGAVENDRA ROW

JUDGEMENT

(1.) The appellant s brother, who was the managing member of a Hindu family, obtained a decree which the appellant now seeks to execute. There was apparently a partition in the family to which both the appellant and his brother belonged; and it is stated that, at the partition, this decree was allotted to the appellant. He then put in an application for execution claiming to be entitled to do so as assignee under an oral transfer. His application was rejected on the ground that an assignee could execute a decree only when the assignment was in writing. The appellant subsequently obtained an assignment from his brother, the decree-holder, in writing, and again applied for execution. The application would admittedly be barred by limitation, unless the previous application could be said to be an application to take a step-in aid of execution in accordance with law. It is difficult to see what step the Court was asked to take in aid of execution in the previous application. But, apart from that, the appellant was not entitled to put in the previous application according to the provisions of Rule 16 of Order XXI, Civil Procedure Code.

(2.) It is argued that a person, who has got an assignment not in writing, is entitled to apply for execution as a decree-holder. This contention cannot be upheld as to do so would be clearly against the provisions of Rule 16 (Order XXI), which give the right to execute to an assignee only when the assignment is in writing. The definition or the word decree-holder is also against the contention urged by the appellants Vakil.

(3.) It is then suggested that the appellant who obtained the decree at the family partition was really an assignee, by operation of law, of the decree, but the partition at which the decree was allotted to him was an act of parties; and the exclusive right of the appellant to the decree was created by an act done by all the co-parceners of the family. He could not, therefore, be regarded as assignee by operation of law. It is urged that there would be much hardship in holding that a person who has an oral assignment of a decree cannot execute the decree at all, inasmuch as there is no legislative provision that an oral assignment is invalid. But the language of Rule 16 is too clear to permit us to hold that a person having only an oral assignment could apply for the execution of the decree. If an oral assignment is not invalid, the assignee could, no doubt, be able to exercise any rights of ownership in any way which does not require the execution of the decree.