SHANKAR HARI Vs. DAMODAR VYANKAJI

JUDGEMENT

(1.) This appeal under the Letters Patent from a decision of Mr. Justice Divatia arises out of execution proceedings. The decree sought to be executed was obtained by one Meghnath against eight defendants, of whom the appellants were defendants Nos. 7 and 8, for the recovery of Rs. 2,431-1-9 and costs of the suit. The decree was passed on September 1, 1923. Meghnath filed a darkhast to execute the decree and it was disposed of on April 15, 1926. Meghnath then recovered Rs. 400 out of Court and transferred the decree by a deed of assignment to one Maruti and the respondent Damodar on April 15, 1926. On July 7, 1926, the appellants paid Rs. 814 to Maruti out of Court and were absolved by him from all further liability under the decree. The other assignee Damodar, the present respondent, then presented darkhast No. 160 of 1929 against defendants Nos. 1 and 5 only, and it was disposed of on April 15, 1929. The next darkhast was filed by him against defendant No. 2 alone, and it was disposed of on July 1, 1932. In these two darkhasts no notice was issued either to the original decree-holder or to the judgment-debtors under Order XXI, Rule 16, of the Civil P. C.. The other assignee Maruti was not a party to them. The present darkhast was filed by Damodar against defendants Nos. 7 and 8 and the heirs of defendant No. 6 on November 21, 1934. Notices under Order XXI, Rule 16, were duly served and the assignment of the decree to Maruti and Damodar has been held proved. It has also been found that the shares; of Maruti and Damodar in the decree are one-third and two-thirds respectively, though the assignment was effected by a single deed. The only ground on which the darkhast is now attacked is that the two previous darkhasts being not in accordance with law, the present darkhast is barred by limitation. Mr. Justice Divatia did not accept that contention and ordered that the darkhast should be proceeded with for the recovery of only two-thirds of the amount due under the decree at the date of the darkhast.

(2.) Various reasons are advanced by Mr. Thakor for the appellants in support of his contention that the darkhasts of 1929 and 1932 cannot save the bar of limitation. His principal contention is that they should have been filed by both the assignees Maruti and Damodar as there is no provision in the Civil P. C. allowing only one of two assignees of a decree to execute it. It is true that there is no express provision to that effect. But by analogy the provisions of Order XXI, Rule 15, may be extended to such a case. Sub-rule (1) of that rule provides: Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all.

(3.) As the decree in the present case was not originally passed jointly in favour of two or more persons, the provisions of this sub-rule do not in terms apply to it. But though passed in favour of only one person, it has been assigned jointly to two persons and they, as the persons claiming under the decree, can execute the decree as if they were the decree-holders, It is true that the definition of "decree-holder" in the Civil Procedure Code of 1882 included a transferee of a decree, and those words have now been omitted in Section 2, Sub-section (3), of the Code of 1908. But that omission is made good by the newly added Section 146 whereby the transferee of a decree, being a person claiming under the decree-holder, steps into his shoes and for all purposes he may be regarded as a decree-holder himself. If the assignment of the decree is jointly in favour of more than one, then such assignees may be deemed as joint decree-holders for the purpose of the application of the provisions of Order XXI, Rule 15, of the Code. This was the view taken by a full bench of the Madras High Court in Muthiah Chettiar V/s. Govinddoss Krishnadoss (1921) I.L.R. 44 Mad. 919 F.B. In that case it is held that where a portion of a decree is transferred to another either by assignment in writing or by operation of law, the transferee is in the position of a joint decree-holder and the executing Court has got the inherent power to grant him relief in execution by applying the general principles of law analogous to Order XXI, Rule 15. Otherwise, as observed by Wallis C.J., "it would be a very unsatisfactory state of the law, if a decree-holder who has obtained valuable consideration for a part transfer of the decree were to be at liberty to abandon or delay the execution of the decree and defeat the right of the transferee." Though such a transfer of a part of the decree is not regarded as valid by this Court in Narandas Sunderdas V/s. Tejmal Bhagchand (1932) I.L.R. 58 Bom. 226 yet the principle of the ruling regarding the application of Order XXI, Rule 15, is in accordance with the view expressed by Shah J. in Madhav Prabhakar V/s. Balaji Govind (1926) I.L.R. 51 Bom. 143 There on the application of one out of several surviving co-parceners of a deceased decree-holder the darkhast was transferred to the Collector, and when it was pending before him the executing Court held that one surviving co-parcener could not maintain the application. The proceedings were, therefore, recalled from the Collector and the darkhast was dismissed. In the next darkhast filed by all the co- parceners a question arose whether for the purposes of limitation the period during which the proceedings were pending before the Collector could be deducted under Schedule III, para. 11 (3), of the Civil P. C., and in holding that it could Shah J. gave two reasons. He said that the learned Judge who took a contrary view appeared to have taken an erroneous view in holding that because the darkhast was ultimately found not to have been properly presented, the order referring the matter to the Collector for execution and all the proceedings that were then pending before the Collector were wholly invalid. He further held that the darkhast was properly presented, although it was presented by one of the co-parceners only. He observed (p. 148): Such a presentation could not be said to be invalid in view of the provisions of Section 146, Civil Procedure, Code, and the provisions of Order XXI, Rule 15. It may be defective and the executing Court may not proceed with execution on the application of one of them under the circumstances. But the presentation by one of the surviving co-parceners of the deceased decree-holder could not be said to be invalid so as to render the proceedings before the Collector invalid and so as to prevent the deduction of the time mentioned in Sub-para. (3) of para. 11 of the Third Schedule of the Code.