BHAGWANDAS TEJAJI Vs. MOTILAL CHAKABHAI

JUDGEMENT

(1.) This appeal arises out of execution proceedings. The decree sought to be executed was obtained by one Tejaji in small cause suit No. 801 of 1931 for the recovery of Rs. 833 and costs from the defendant on 29-6-1931. As the decretal amount was not paid in time, the decree-holder Tejaji presented darkhast No. 748 of 1932 which was disposed of on 7-12-1932. Tejaji then died in March 1933 and his two sons, Bhagwandas and Hiralal, who became entitled to the decree by survivorship, presented darkhast No. 3387 of 1933 which was disposed of on 21-9-1934. Their next darkhast No. 209 of 1936 was disposed of on 1-5-1936. The brothers then separated and by a registered partition deed dated 29-6-1936, the decree against the defendant was allotted to the share of Bhagwandas. Bhagwandas then applied to the Small Cause Court on 21-4-1939, for transfer of the decree to the Court of the First Class Subordinate Judge at Ahmedabad, alleging that the decree had fallen to his share at a partition between him and his brother. His application was granted and the order for the transfer of the decree as prayed for was endorsed below the decree. Bhagwandas then presented darkhast No. 359 of 1939 in the Court of the First Class Subordinate Judge at Ahmedabad on 1-5-1939, and it was disposed of on 8-12-1939. The present darkhast was then filed by him on 28-2-1940. The defendant judgment-debtor contended that Bhagwandas was not entitled to execute the decree and that the execution was time-barred since the darkhast of 1939 had not been properly filed and could note be regarded as a step-in-aid of the execution. The executing Court held that the decree having been allotted to the share of Bhagwandas, he was entitled to execute it and that the execution of the decree was not time- barred and, therefore, it ordered that the darkhast should be proceeded with. But in appeal the learned District Judge, while agreeing with the finding of the executing. Court that Bhagwandas bad a right to execute the decree, found that the darkhast of 1939 had not been properly filed and, therefore, the darkhast was time-barred. He, therefore, dismissed the darkhast and Bhagwandas has presented this second appeal.

(2.) Both the application of Bhagwandas for a transfer of the decree made to the Small Cause Court and the subsequent darkhast of 1939 filed in the Court of the First Class Subordinate Judge to which the decree was transferred were presented within three years of the disposal of the previous darkhast of 1936. But it appears that the order of transfer of the decree was passed by the Small Cause Court without recording an express finding that Bhagwandas was an assignee of the decree under the deed of partition and without issuing a notice as required by Order 21, Rule 16, Civil P.C. But when the decree was, returned with the Court's endorsement for being executed in the Court of the First Class Subordinate Judge at Ahmedabad, Bhagwandas had been recognised as the decree-holder entitled to execute it. The learned District Judge, relying upon the ruling in 41 Bom. L.R. 1190,1 held that the application and the darkhast could not save the bar of limitation. The observations quoted by him from that decision are (p. 1195): ... the assignee or transferee of the decree cannot continue any proceedings previously commenced, nor can he institute any fresh proceedings for the execution of the decree, unless he makes an application under Order 21, Rule 16, to the Court which passed the decree. That application will be heard by the Court, not as a Court executing the decree, but as a Court which passed the decree, and it seems clear to me that until an order is made by the Court which passed the decree that execution may proceed at the instance of the transferee, it is not open to the transferee to execute the decree, nor is there any Court which is executing the decree.

(3.) The remark that "the application under Order 21, Rule 16, Civil P.C. will be heard by the Court, not as a Court executing the decree, but as a Court which passed the decree" now requires to be modified in view of the ruling of the Privy Council in 70 I.A. 502 and of a Full Bench of this Court in 43 Bom. L.R. 751.3 That remark was based on the decision of a Division Bench in 47 Bom. 643,4 and considering all these cases this Court has held in 47 Bom. L.R. 8295 at p. 830 that it is now settled that the Court hearing the application of an assignee of a decree under Order 21, Rule 16 is an executing Court. But the other observations quoted by the learned District Judge from 41 Bom. L.R. 11901 do not help the judgment-debtor in this case. In that case the application tinder Order 21, Rule 16, was made to the Court to which the decree had already been transferred, and, therefore, such an application could not be a step-in-aid of execution as the proper Court to which such an application was to be made was the Court which passed the decree. In the present case the application for transfer of the decree was made to the Court which passed the decree and that application was in time. Such an application made in accordance with law is a step-in-aid of execution within the meaning of Art. 182, Clause (5), of Schedule 1, Limitation Act. Mr. Thakor however, argues that the application was made by Bhagwandas for execution of the entire decree on the ground that it had fallen to his share at the partition and that the absence of a notice under Order 21, Rule 16, did (not?) effect a transfer of the decree in his favour. Assuming that the effect of the partition was to transfer the decree to Bhagwandas, yet Bhagwandas was already a co-owner of the decree and was thus entitled to at least half the decree even before the partition. In that capacity he was one of the two joint decree-holders and could execute the decree under Order 21, Rule 15, Civil P.C. and was, therefore, entitled to make an application for transfer of the decree. The executing Court to which the decree was transferred might ask for security from him in the interest of the other decree-holder, but nonetheless the application was a proper application made to a proper Court and would save the bar of limitation.