Narasimham, J.:-

(1) .this is an appeal preferred under the letters patent against the judgment of our learned brother srinivasachari j. , in s. A. No. 778 of 1956. Affirming the judgment of the lower appellate court and raises the question as to the right of an assignee of the decree - holder, whose assignment has not been recognised by the executing court as against the right of an attaching creditor of the decreeholder - assignor. The facts involving this question are these : the appellant herein is the assignee of the decree - holder the second respondent in this appeal. The second respondent, mohamed ismail will hereinafter be referred to as the decree - holder. A decree was passed in his favour in o. S. No. 95 of 1951 on the file of the sub - court tenali, for rs. 2,600 realizable with interest thereon and a charge was created against certain immoveable properties for the realisation of the said amount. The decree - holder then transferred the decree by an assignment deed dated 27th august, 1952, exhibit a - 2, in favour of the present appellant. After the assignment, the appellant (who will be referred to as the assignee) did not apply to the court for recognition of the assignment, and execution of the decree under the provisions of order 21, rule 16, civil procedure code.

(2) While so, the first respondent (herein referred to as the attaching creditor) obtained a money decree against the decree - holder, in s. C. No. 355 of 1952 on the file of the district munsif's court, tenali, and attached the decree in o. S. No. 95 of 1951 in favour of the decree - holder on nth october, 1952. He then executed the decree. The charged property was sold in execution and purchased by the third respondent (who will be referred to as the auction - purchaser). Before the sale of the charged property in o. S. No. 95 of 1951, the assignee preferred a claim in e. A, no. 225 of 1954. That claim was dismissed, whereupon he preferred a claim suit, o. S. No. 20: of 1954 in the court of the district munsif tenali, to set aside the adverse order passed on the claim petition. It would appear that it was conceded that the assignment was true and supported by consideration.

(3) The district munsif tenali, who tried the claim suit, o. S. No. 201 of 1954 found that unless the assignee applied to the court for recognition and execution of the decree under the provisions of Order 21, rule 16, he would have no right to question the attachment and sale of the property and, in that view, dismissed the suit.

(4) The learned subordinate judge, tenali, in the appeal preferred by the assignee, agreed with that view and dismissed the appeal. The second appeal preferred to this court was also dismissed by our learned brother, srinivasachari, j. , agreeing with the view of the courts below. But, he granted leave. The matter is before us in letters patent appeal. The short question, as we have indicated, is the right of an assignee of the decree - holder, who has not applied to the court for recognition of the assignment and for execution of the decree vis - a - vis the right of an attaching creditor. Sri suryanarayanamurthy for the appellant - assignee argued for the position that when there is an assignment, the property which is the subject - matter of the assignment, passed to the assignee, and that any attachment effected thereafter would not confer any rights on the attaching creditor. His contention is that order 21, rule 16, civil procedure code, is a rule of procedure and would not interfere with the substantive rights of the parties. Be it noted that in the present case the attachment (dated nth october, 1952) by the creditor was subsequent to the assignment (dated 27th august, 1952). For this proposition he has relied on sadagopachariar v. Ranganathachanar and others , (1910) i. L. R. 33 mad. 62. Which was followed by a division bench of the rangoon high court in co - operative town bank of padigon v. S. V. K. V. Raman chettiar, (1927) i. L. R. 5 rang. 595.

(5) The madras decision pertains to a suit by the assignee to recover the original debt repudiating the assignment. It would appear that subsequent to the assignment dated 28th january, 1904, the decrees were attached by a creditor of the decreeholder - assignor. The assignee did not apply for the execution of the decrees till 1905. One of his applications for execution was dismissed on 27th march, 1905 on the ground that the decree had been attached. Another application was dismissed as not pressed. On 27th july. , 1905, the assignee repudiated the assignment and brought a suit to recover his debts which formed the consideration for the assignment of the decrees.

(6) The learned judges discussed about the maintainability of the suit and held that the suit was not maintainable in the view that unless the assignee had at least preferred a claim to the attaching court and that had been rejected, the assignee was not entitled to treat the assignment as ineffctual. In the course of the judgment there is reference to an earlier madras decision in puthiandi mammed v. Avalil moidin , (1896) i. L. R. 20 mad. 157

(7) Where it was held by a divisional bench that by an assignment of a decree there was no complete transfer until it was recognised by the court. It would appear to have been contended on the strength of that decision that the property in the decree had not passed prior to the attachment because there was no such recognition. The learned judges expressed therein their disagreement with that view and went on to say that as they could read the relevant provision the completion of the transfer did not depend upon any recognition by the court. The ultimate decision in this case was undoubtedly, adverse to the assignee on the ground that he had not preferred a claim to the attaching court.

(8) But, these observations are canvassed for the proposition that the property in the decree had passed to the assignee on the assignment, that no further recognition by the court was necessary, and if that was the correct position the property attached subsequent to the assignment cannot be proceeded against by the attaching creditor as the property of the assignor - decreeholdcr.

(9) The rangoon case presented similar facts. That was a case where an attaching creditor executed the decree and realised rs. 2,700. There was an assignment of the decree prior to the attachment in favour of a co - operative town bank of padigon. The assignee claimed to recover the amount realised by the attaching creditor. The learned judges took the view that such a suit for recovery of the money was maintainable. In the course of the judgment, the learned judges referred to puthiandi mammed v. Avalil moidin1, and in the view that this decision was dissented from by their lordships in the case of sadagopachariar v. Raghunadhachariar and others , (1910) i. L. R. 33 mad. 62. They agreed with the view taken by the latter bench. The opinion expressed in sadagopachariar v. Raghunathachariar and others2, appears to have been followed in nichalsing mahtabsing v. Vishenji goverdandas, a. I. R. 1928 sind. 71.

(10) In pearey lal v. Allahabad bank ltd. , meerut , a. I. R. 1926 all. 244 a single judge expressed the opinion that in a case where there is an assignment prior to the attachment, an enquiry fell within the provisions of order 21, rule 58, civil procedure code, and that the order thereon was final, subject to the result of the suit. Chillaloor terra musalareddiv. Pathangi rarrdaya and others , (1910) 5 i. C. 1010. Is another case where it was indicated that the remedy open to an assignee of a decree which was attached by a creditor of the assignor, was to prefer a claim to the attaching court. The two latter rulings do not refer to the conflict of views in puthiandi mammed v. Avalil moidin and sadagopachariar v. Ranganathachariar and others. They seem to indicate only a remedy of an assignee. As it is, there appears to be some difference in view between puthiandi mammed v. Avalil moidin and sadagopachariar v. Rangauathachariar and others, both of which are division bench decisions expressing divergent views.

(11) The learned counsel for the respondents, sri surya rao, argued for the position that the assignee has to apply for recognition and execution under order 21 rule 16, civil procedure code, before he could question the attachment effected by an attaching creditor and that the view expressed in puthiandi mammed v. Avalil moidin, has been consistently adopted in subsequent cases decided in madras and other high courts.

(12) He has further argued that it is not for the executing court to embark on enquiries as to the right to execute, but must allow the execution to proceed on the basis of the decree - holder on record. This proposition is supported by sillu pedda yelligadu v. Sree raja ravu venkata kumari mahipati surya rao bahadur zamindar varu and another, (1915) 29 m. Lj. 693 and t. S. Ari chetty v. Theerthamalai chetty and another, a. I. R. 1917 mad. 691 and han krishnamurthi v. Akella suryanarayanamurthy and others. , (1920) 38 m. L. J. 271 nayinsikh jayanarayana v. Seerapu polayya and others, (1935) 68 m. Lj 392 considered the earlier decisions with regard to the position of an original decree - holder vis - a - vis the assignee of the decree debt who had not taken steps to get himself recogniseed as the transfereedecreeholder and ruled that (at page 394) :

(13)

"the only person in whose favour the decree was, on the face of it, was the original decree - holder and the executing court was bound to regard him as the person entitled to execute the decree and could regard no other person as such."

(14) The prior decisions have been reviewed exhaustively by the division bench. This ruling was followed in peddisetti rangayya setti v. Guduru venkatasubba reddi and others, a. I. R. 1937 mad. 605. In kunchaparti venkatachelam v. Vermin subrahmanyam and another , (1941) a m. Lj. 219 patanjali sastri, j. , referred to sadagopachariar v. Ranganathachariar and others , (1910) i. L. R. 33 mad. 62 and expressedthat

" a transfer of a decree by an instrument in writing takes effect from the date of such transfer and the transferee is entitled to apply for executing the decree under order 21, rule 16 of the code. The court, before ordering execution has, no doubt, to issue notice of such application to the transferor and the judgment - debtor and hear their objections, if any."

(15) It is seen therefore that there is consistent authority for the position that an assignee has to apply to the court under order 21, rule 16, civil procedure code and get his assignment recognised before he could execute the decree. It would appear, that this view is also shared by other high courts as well. Reference is made to umrao singh v. Pahlad singh , a. I. R. 1935 all. 1001 where the learned judges have observed (at page 1001) thus : "on the face of the decree, pahlad singh is the person entitled to execute it.

(16) Private transactions outside the court cannot be recognised by the execution court when the alleged assignee has not come forward to claim such rights and get her name substituted. If this were allowed, the result would be that an execution court would be compelled to go behind the decree in many cases and start an investigation as to the way in which interest has devolved on other persons not before it.

(17) It is significant the under order 21, rule 10, civil procedure code, when the holder of a decree desires to execute it he shall apply to the court which passed the decree whereas with reference to transferees Order 21, rule 16, merely says that where the interest of any decree - holder in a decree is transferred by assignment, the transferee may apply for execution of the decree to the court which passed it.

(18) There is nothing in the provisions of order 21, which debars the original decree - holder whose name appears on the face of the record, from executing the decree merely because there has been some assignment out of court which has not yet been recognised by the execution court. "

(19) To the same effect is ananth nath bose v. Monmotha nath bose and others, a. I. R. 1939 cal. 482. Mohd. Ishrat ali v. Sayed raza , a. I. R. 1945 oudh 225 propounded the same view. It was observed in the course of the discussion with reference to the case - law that (at page 226) :

" there is a long string of cases which lay down that so long as a transferee's right to execute a decree is not recognised by the gourt, it is the original decree - holder who can make an application for execution."

. A recent ruling of our high court in duvvuru balasubramanya reddy v. Duvvuru

(20) Munuswami reddy and others , a. I. R. 1960 a. P. 305 has also adopted this view. We consider that the consensus of judicial authority supports the view that an assignee - decreeholder cannot arrest or impede execution of the decree till he applies for and obtains recognition of the assignment in his favour by the court.

(21) A careful study of the relevant provisions would lead us to the same conclusion. Law permits the assignment of a decree. By reason of the assignment, the assignee could apply for the execution of the decree under order 21, rule 16, civil procedure code. Till he applies to the court and obtains recognition, obviously, the court the court has no power to go behind the decree and enter into questions beyond the scope of the decree. There is a principle involved viz. , that of sanctity of decrees. Further, order 21, rule 53, sub - rule (3) , is in these terms :

" the holder of a decree sought to be executed by the attachment of another decree of the nature specified in sub - rule (i) shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof."

the attaching - decreeholder thus steps into the shoes of the original decree - holder and could execute the decree.

(22) This result which is independently achieved and which is also borne out by consensus of judicial authority, does not conflict or affect any substantive rights. Order 21, rule 16, regulates the procedure and does not affect substantive rights. It is perfectly consistent with the hypothesis that a transfer as between the assignor and the assignee might operate as an assignment, but so far as the execution of the decree is concerned, the assignee has to conform to the procedure prescribed to enforce the right that he had obtained by the assignment. An assignee cannot merely rest on his assignment without resorting to the procedure for the enforcement thereof. Salmond has lucidly brought out the distinction in his jurisprudence (nth edition, 1957, at page 504, in chapter 22) thus : "whether i have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice ; but in what courts and within what time i must institute proceedings are questions of procedural law, for they relate merely to the modes in which the courts fulfil their functions. " the executing courts are, by law, bound to execute decrees as they stand and without going behind the decrees. An instance in point is under order 21, rule 2 (3) , where it is expressly stated that, " a payment or adjustment which has not been certified or recorded (as aforesaid) shall not be recognised by any court executing the decree. " these and other rules of the kind are meant to safeguard the sanctity of decrees. On a review of the several aspects bearing on this question, we have no hesitation in expressing our view that the assignee, without applying under Order 21, rule 16, cannot question the attachment of the property in question and the sale thereof.

(23) In this view, the courts below and our learned brother, srinivasachari, are right in dismissing the appellant's suit. Sri suryanarayanamurthy has urged that, as a last plea, he might be permitted to treat the suit as an application under order 21, rule 16. We do not consider that this could be permitted, as different considerations would prevail with regard to an application under Order 21, rule 16, which contemplates an application for execution of the decree to the court which passed it. We therefore affirm the decision of our learned brother, srinivasachari, j. The letters patent appeal fails and is dismissed with costs of respondent appeal dismissed.

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