AYYARU PILLAI Vs. VARADARAJA PILLAI

JUDGEMENT

(1.) THIS is a petition to revise the order of the Subordinate Judge of Tanjore recognising the assignment of the decree in favour of the petitioner in the Lower Court. The contention of Mr. Ramaswami Aiyar for the petitioner is that it was not competent for the assignee decree-holder to make the application he did to the Court executing the decree. The decree was passed on 12 April, 1915, by the Subordinate Judge's Court, Tanjore. It was transferred for execution to the District Munsif's Court of Tanjore by an application, dated 18 July, 1916. The assignee decree-holder applied to the District Munsif's Court on 10 February, 1920, for the issue of notice to the defendant under Order 21, Rule 22 and asked " that the records may be transferred along with the certificate to the Subordinate Judge's Court, Tanjore, for the purpose of further conducting the suit." In it he also stated that the decree; had been transferred to him by assignment. The question is, whether this is an application which it is competent for the assignee decree-holder to make. If he was competent to make the application it would be a step-in-aid of execution under Art. 182(5) of the Limitation Act. It is well settled that an assignee decree-holder can apply only to the Court which passed the decree for being recognised as the assignee of the decree and it is also settled that he cannot make an application only for the purpose of being recognised as an assignee decree-holder. His application must be one for execution and therefore if he does not apply for execution, his ? application would not be considered to be a proper application. In, this cast he asked that the records be sent to the other Court for the further conduct of what he calls a suit and I suppose he meant by it for the execution of the decree. It has been held in Krishnayyar V/s. Venkayyar (1882) I.L.R. 6 M 81 that if a decree-holder applies to the executing Court to send the records to the Court which passed the decree, that application is a step-in-aid of execution and saves limitation. Whether a transferee decree-holder can make a similar application is the question. In order that his claim as assignee decree- holder may be recognised, it is necessary that the papers should be sent back to the Court which passed the decree. It is admitted that the assignee decree-holder was subsequently recognised to have got a proper assignment of the decree by the Subordinate Judge's Court, Tanjore, which passed the decree. Whether in order to get that relief his application to the executing Court to send back the papers to that Court is a competent ore is I think in order to enable the Court which passed the decree to recognise him as the assignee decree-holder it was necessary for that Court to have the records sent up by the executing Court and an application for that purpose, I think, comes within the expression of "step-in- aid of execution." In this case, the application was not by assignee decree-holder for execution to the executing Court which no doubt he was incompetent to make till his assignment was recognised. But in order that that Court which passed the decree may pass an order under Order 21, Rule 16, it was necessary, though it might not he so in every case, at: least in this case that the papers should have been sent back. I hold, therefore, that this application was a proper one which the assignee decree-holder was competent to make. In this connection I would like to refer to the case reported in Monorathdas V/s. Ambika Kanta Bose (1909) 9 C.L.J. 443. In that case an application which was made by a person who got a title to a decree by operation of law and who made an application before the Court which passed the decree recognised him as being entitled to execute the decree, was a proper application. In this view of the case I think the order of the Lower Court is correct and this petition is dismissed with costs.