NARAYANDAS SUNDERLAL RATHI Vs. TEJMAL MOHANLAL

JUDGEMENT

(1.) On October 14, 1931, a decree was made in the above suit in favour of the plaintiffs for Rs. 6,590-11-0 with interest at six per cent, per annum from October 14, 1931, till payment and the costs of the suit. By a deed of transfer dated February 29, 1932, the plaintiffs assigned to the applicant their right, title and interest under the decree in respect of Rs. 6,590-11-0 and interest without assigning to the applicant the plaintiffs further right, title and interest under the decree in respect of the payment of costs when taxed. The applicant has now applied under the provisions of Order XXI, Rule 16, of the Civil P. C., calling upon the plaintiffs and the defendants to show cause, if any, they have, why the decree dated October 14 1931, in favour of the plaintiffs and transfered by them to the applicant should not be executed by the applicant against defendants Nos. 1, 2 and 5. Defendants Nos. 1 and 2 contend that the decree which has been assigned cannot be executed as it is only partially assigned to the applicant.

(2.) Order XXI, Rule 16, provides that where a decree is transferred by assignment in writing, as here, the transferee may apply for execution of the decree to the Court which passed it, and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder. There is no provision in this rule for a decree being partially transferred by assignment. Where a decree is passed jointly in favour of two or more persons, the rule provides that the interest of any decree-holder in the decree may be transferred by assignment. In the present case there was no joint decree in this sense. The decree is in favour jointly of two plaintiffs, plaintiff No. 1 being the father and plaintiff No. 2 his minor son, the two being, coparceners of a joint and undivided Hindu family which trades under the name and style of Shaligram and Narayandas at Bombay. Plaintiff No. 1, as manager of the joint family, has assigned to the applicant the interest of both plaintiffs in the decree except as to costs awarded under the decree. Order XXI, Rule 15, regulates the procedure regarding execution of decrees passed jointly in favour of more persons than one. In such cases unless the decree imposes a contrary condition one or more of such joint decree-holders may apply for the execution of the whole decree for the benefit of all the joint decree-holders. Such is not the case here. The application here is for the execution of the decree restricted to the interest transferred by assignment to the applicant.

(3.) Counsel have not found any reported case of our High Court on the point which has now arisen. The practice of the English Courts is governed by Order XLII, Rule 23, Clause (a), of the Supreme Court Rules. This rule provides inter alia that where change has taken place by death or otherwise in the parties entitled or liable to execution, the party alleging himself to be entitled to execution may apply to the Court or Judge for leave to issue execution accordingly. In applications made on behalf of transferees of decrees by assignments the English Courts have held that the transfer should be of the whole decree and not merely of a part of it. In Forster V/s. Baker [1910] 2 K.B. 636 a judgment-creditor had assigned part of the judgment for valuable consideration; the assignee applied for leave to issue execution. The original Court and the Court of Appeal concurred in holding that the assignee was not entitled to such leave : the original Court on the ground that there cannot be an absolute assignment within Section 25, Sub-section (6) of the Judicature Act, 1873, of a definite part of an existing debt or other legal chose in action; and the Court of Appeal on the ground that as the original judgment-creditor could only issue a single execution upon his judgment and could not split up the judgment debt and issue separate executions upon the different parts, he could not give to an assignee of a part of the judgment-debt a right which he did not himself possess. Vaughan Williams L.J., in delivering the judgment of the Appeal Court, observed (p. 641) :- A judgment creditor could not before the coming into operation of the Judicature Act, 1873, have issued a series of small executions upon his judgment making in the whole the total amount of the judgment debt ; he had only one judgment, and upon that judgment he could issue only one execution ; he has only the same right now. And if a judgment creditor assigned part of his judgment debt, he could not then, and cannot now, give to his assignee any better right than he had himself. The result is, therefore, that the assignee of part of a judgment debt is not in a position to issue execution upon it, which is what the plaintiff in the issue wishes to do in the present case. This case was followed by the Court of Appeal in Rothschild V/s. Fisher [1920] 2 K.B. 243. See the observations of Lord Sterndale M.R. at p. 252 of his judgment and of Scrutton L.J. at p. 255.