RAMANADHAN CHETTIAR Vs. RAMACHANDRA SIVAJI GHANTIKAE

JUDGEMENT

(1.) No. 180 of 1924: The appellant is the transferee of the assignee of the rights of Defendants 1 and 2 at a time when they had obtained a preliminary decree for partition of their share in the family property. The appellant took no steps to be impleaded in that suit, but after the final decree has been passed he applies to execute the final decree passed in favour of Defendants 1 and 2. It is contended for the appellant that he can come in under Order 21, Rule 16 but it is clear that that rule applies to the execution of a decree which has itself been transferred to the person seeking execution. Here the only decree that can be said to have been transferred to the appellant is the preliminary decree in the suit. That cannot be executed. Therefore, Rule 16 is clearly inapplicable.

(2.) It is then argued that the case comes within Section 146 of the Civil P. C. and that inasmuch as Defendants 1 and 2 can execute the final decree and the appellant is a person claiming under them he is equally entitled to execute the decree. Undoubtedly the appellant claims under Defendants 1 and 2 in so far as their right was declared by the preliminary decree, but that was an inchoate right being merely declaration of their right to a certain share without determining the extent of that share. After such transfer the defendants proceeded with the suit and obtained the further right, namely the right to secure possession of their separate share. That was a right which was hot tested in them at the date of the transfer, and consequently that right did not pass to the appellant. So far, therefore, as that right is concerned, he cannot be deemed to be a person claiming under the defendants, who are decree-holders. The oases cited before us for the appellant do not seems to be applicable. The appeal is dismissed with costs of the sole contesting respondent.

(3.) Appeal Against Order No. 181 of 1924 follows and is dismissed.