ATMARAM Vs. GANPATI

JUDGEMENT

(1.) THE facts of this case have been carefully and succinctly stated in the judgment of the learned District Judge and it is unnecessary to repeat them here. After Balaji's death the name of his widow, Sita, was substituted as decree-holder on 14th July 1923 in respect of Balaji's decree against Tanba, Wasudeo and Tukaram obtained in Suit No 231 of 1921. Two days later, viz., on 16th July 1923, Mt. Sita assigned this decree in favour of Atmaram, the present appellant. On 28th July 1923 Atmaram applied for substitution of his name in place of that of Mt. Sita in the execution proceedings. Notice issued to the three judgment-debtors and the case was eventually fixed for 25th August 1923.

(2.) MEANWHILE , a suit (No. 168 of 1923 had been filed by Ganpati, the son of Deoba, and Kashinath against Mt. Sita in respect of a bond executed by Balaji in 1921 in favour of Deoba and Kashinath. An ex-parte decree was obtained on 20th September 1923 for Rs. 276-11-0, execution to be taken out of the assets of Balaji in the widow's hands. Five days later these decree-holders applied for execution of their decree by the attachment of Balaji's decree referred to above, and the attachment was effected on 28th September 1923. Meanwhile, in the course of the execution proceedings under Balaji's decree, Atmaram objected to the attachment and contended that, in view of the" assignment of the decree in his favour by Mt. Sita prior to the attachment of the decree by Ganpati and Kashinath, ho was in the stronger position. Ganpati and Kashinath, on the other hand, alleged that the assignation was a bogus one and the first Court upheld this allegation. The learned District Judge, however, on the case coming before him on appeal, did not consider it necessary to go into the question of whether the assignation was a valid one or not. Following an unreported decision of the Madras High Court, which is quoted in his judgment, he held that under Order 21, Rule 53, Civil Procedure Code, an assignee of a decree-holder does not stand in the same position for purposes of execution as the decree-holder himself. He was of opinion that under the rule quoted, only the decree-holder of the attached decree or the attaching creditor can take out execution thereunder and that the assignee of the holder of the attached decree can- not do so. In this view of the law, the learned District Judge did not find it necessary to go into the question of fact as to the real or fictitious nature of the assignation and dismissed the appeal of Atmaram.

(3.) WE have here an apparent clash between Rule 16 and Rule 53 of Order 21, Civil Procedure Code. The former rule lays down that the assignee of the interest of any decree-holder may apply for execution 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. On the other hand, the learned District Judge, following the unreported decision he has quoted, has held that Rule 53 enjoins stay of execution of the attached decree until the Court which passed the decree sought to be executed cancels the notice of attachment, or the holder of the decree sought to be executed or his judgment-debtor applies for execution. For my own part, with all deference to the learned Judges, who have decided the case referred to I am wholly unable to understand why in Rule 53 it should have been necessary specifically to mention the assignee, of the holder of the attached decree as entitled to execute it also in view of the more general provision contained in the first clause of Rule 16, a provision which entitles the assignee to execute the decree in the same manner and subject to the same conditions as the original decree-holder. Rule 53 is an ad hoc provision dealing with a particular contingency and it would seem to me that the Legislature in framing it had not in view the possible difficulty which might arise in interpreting it in relation to the contingency of assignation of a decree dealt with in Rule 16. This being so, the rule of interpretation to be applied is that every attempt should be made to avoid inconsistency in the meaning of an Act. Here, on the view taken by the lower appellate Court, the more general provision contained in . 16 is curtailed in its operation by the construction the learned District Judge has put on Rule 53. That curtailment is only by implication, and had it been deliberate I should have expected to find in Rule 16 some such provision as "may be executed, save as provided in Rule 53, in the same manner and subject to the same conditions." The words underlined {here italicized) are my own. The words "his judgment-debtor" in Rule 53 seem to be a mere matter of nomenclature equivalent to the holder of the attached decree, and if this is admitted it seems to me unquestionable that the assignee of the holder of such decree, must, having regard to the more general provision of Rule 16, also be entitled to take out execution under Rule 53.