CHINTALAPUDI VENKATARAMAYYA Vs. POTULA VENKATARAMAYYA

JUDGEMENT

(1.) The question in this second appeal is whether Section 47, Civil P.C., operates as a bar to the maintenance of the suit instituted by the plaintiff for a declaration that the transfer of a decree obtained by defendant 1 against him in favour of defendant 2 is invalid. Both the lower Courts took the view that it does not. This view is canvassed in second appeal. The question is whether it is sound. The material facts bearing on the question are these: Defendant 1, Rednam Sitaramiah obtained a decree in S.C.S. No. 208 of 1926 on the file of the District Munsif's Court of Amalapuram on 9 August 1926 against the plaintiff Potula Venkataramayya and another. Defendant 2 obtained a transfer of the said decree on 17th February 1927, under Ex. 3-A, and as the transfer deed was defective, a later transfer was effected on 12 March 1927, under Ex. C. In pursuance of that transfer defendant 2 applied on 22 March, 1927 for leave to execute the decree Under Order 21, Rule 16, Civil P.C. The judgment-debtors oppose the application for execution. Their grounds of objection are these. On 22 July, 1926, one Pundareekashadu obtained a decree in S.C.S. No. 29 of 1926 on the file of the Sub-Court, Bezwada, against Rednam Sitaramayya, the decree-holder in S.C.S. No. 208 of 1926, the assignor of defendant 2. On 3 February 1927, the said Pundareekashadu assigned the decree to Potula Venkataramayya, the present plaintiff, i.e. one of the judgment- debtors in S.C.S. No. 208 of 1926. In pursuance of the transfer he applied for leave to execute the said decree in S.C.S. No. 29 of 1926, got a transfer of the said decree to the District Munsif's Court of Amalapuram and attached the decree in S.C.S. No. 208 of 1926. Both the judgment, debtors in S.C.S. No. 208 of 1926 alleged that the transfer of the said decree in favour of defendant 2 was nominal and collusive and without consideration and was brought about to defraud the rights of Potula Venkataramayya under the decree in S.C.S. No. 29 of 1926.

(2.) Two questions were raised, namely whether the transfer in favour of defendant 2 was collusive and bears no consideration and whether he was only a name lender for the decree- holder Sitaramayya. The learned Subordinate Judge of Amalapuram overruled the objections of the judgment-debtors and upheld the transfer by his order dated 14 March 1928. Thereupon Potula Venkataramayya instituted the present suit against Rednam-Sitaramayya, the decree-holder in S.C.S. No. 208 of 1926 and Chintalapudi Venkataramayya, defendant 2, in whose favour the assignment of the said decree has been effected, for a declaration that the transfer was a sham and collusive transaction brought about in fraud of his rights and therefore invalid. The question therefore on these facts is whether such a suit is maintainable. The grounds on which the lower Court decided the case are two, namely: (1) that the objection raised by the plaintiff to the transfer before the Sub-Court, Amalapuram, in proceedings Under Order 21, Rule 16, Civil P.C. was not in the capacity of the judgment- debtor and therefore Section 47, Civil P.C., would not apply; and (2) the matter decided by the executing Court was not one relating to execution because it relates to the factum and the validity of the assignment. The relevant provisions of the Civil Procedure Code bearing on the matter are Order 21, Rule 16 and Section 47 (3). Order 21, Rule 16 provides that ?Where a decree has been transferred by assignment in writing", which is the case here, the transferee may apply for execution of the decree to the Court which passed it and the decree may be executed in the same manner and subject to the same conditions as if the application was made by the decree-holder.

(3.) Where therefore such an application for execution is made by a transferee, it is open to the judgment-debtor to say that he is not a representative of the decree-holder on the ground that there is no valid transfer and no vesting of the decree in him by virtue thereof. Under Section 47, Sub-rule (3), where a question arises as to whether any person is or is not the representative of a party, such a question which involves the validity of the transfer shall be determined by the Court. Unless that is done, the Court could not pass an order for execution. The validity of the transfer may be questioned on various grounds, Prima facie therefore the objections raised by the judgment-debtors to the application for execution of the decree made by defendant 2 Under Order 21, Rule 16 are questions which it was obligatory upon the Court before which such an application was made to decide. The objections having been determined, and the order for execution having been made by recognizing the transfer, it is a decree within the meaning of Section 47, Civil P.C. A separate suit will not lie and Section 47 appears to be a bar to the suit, Considerable reliance is placed by the lower Court and by Mr. Raghava Rao before me on two cases in favour of the view that a suit like the one in question is not prohibited by Section 47, Civil P.C. One case is Bommanapati Veerappa V/s. Chintakuuta Srinivasa Rau (1903) 26 Mad 264. and the other is Ishar Das Gorakh Ram V/s. Salig Ram (1929) 16 A.I.R. Lah 51 which purports to follow Bommanapati Veerappa V/s. Chintakuuta Srinivasa Rau (1903) 26 Mad 264. In Bommanapati Veerappa V/s. Chintakuuta Srinivasa Rau (1903) 26 Mad 264. It was held that a suit by an assignee of a decree for a declaration that he obtained a valid assignment of the decree might be brought and when such a suit is brought, the Court should simply decide as to the factum and validity of the assignment and should not declare that the assignee is entitled to execute the decree. It may be noticed that when the above decision was passed, the relevant provision of Section 244, corresponding to Section 47, Civil P.C., bearing on the present discussion, ran thus: If a question arises as to who is the representative of a party for the purposes of this section, the Court may (either stay execution of the decree until the question has been determined by a separate suit or) itself determine the question (by an order under this section).