KANNIAH NAIDU Vs. CHENGAMA NAIDU

JUDGEMENT

(1.) The appellant obtained a transfer deed (Exhibit A) of the decree passed in Suit No. 53V of 1911 on the file of the Court of the District Munsif of Poonamallee from the son and heir of the decree-holder (by name Chinna Chengama Naidu) on the 23rd of August 1913 for Rs. 232-11-5. The decree was a mortgage-decree for sale.

(2.) The appellant applied for execution on the 30th November 1912 as transferee- decree-holder under Order XXI, Rule 16, of the Code of Civil Procedure and prayed for the passing of a final decree and also for sale.

(3.) It has to be observed that the lower Courts have not scrutinised the prayer in the petition and did not have it properly amended as they ought to have done. The petition mentions in the beginning only Order XXI, Rule 22, of the Code of Civil Procedure. In column 10, it mentions Order XXI, Rule 16, and Order XXI, Rule 66, of the Code of Civil Procedure. These rules relate to applications by the transferee of a decree for execution thereof, to the issuing of notice of such applications and to the issuing of proclamation of sale. But there is at present no executable decree, because only a preliminary decree under Order XXXIV, Rule 4, has been passed in the suit. The present Petition No. 1032 of 1912 in column 10 admits that a final decree has to be passed, as it prays for the making of the decree final. Till a final decree is passed, the suit is pending. The date of preliminary decree is dated 24th November 1911. The date fixed for payment is 24th February 1912. Under Order XXXIV, Rule 5, Clause (2), when the payment is not made, the plaintiff has to make an application to pass the final decree for sale. The application for execution, therefore, was premature and as there is a prayer for passing a decree for sale, the appellant ought to have been asked to amend the petition as an application under Order XXXIV, Rule 5, Clause (2), or the Code of Civil Procedure. But as a preliminary even to that application, he ought to have asked for leave of the Court to continue the suit under Order XXII, Rule 10, of the Code of Civil Procedure on the ground that the interest in the preliminary decree has, during the pendency of the suit, been assigned to and has devolved upon him.