Judgement

SATYANARAYANA RAJU, J. :- The question which has been referred to the Full Bench is :

"Whether an execution application filed by the legal representative of a decree-holder who was not brought on record as his legal representative was one made in accordance with law?

2. The facts which have given rise to this reference may be briefly stated : On 20-12-1941, the deceased father of the respondents obtained a decree against the petitioners in O. S. No. 378 of 1940 on the file of the District Munsiffs Court, Kovvur. The decree was confirmed in appeal by the Subordinate Judges Court, Eluru, on 9-3-1943. Before the decree could be executed, however, the decree-holder died. On 9-3-1946, the sons of the deceased decree-holder, as his representatives, filed E. P. No. 111 of 1946 against the judgment-debtors.

The execution petition merely described the applicants as the legal representatives of the deceased decree-holder and prayed for execution but did not contain a specific prayer that they should be brought on record. E. P. No. 111 of 1946 was dismissed for default on 13-9-1946. Thereafter, on 9-3-1948, the legal representatives of the deceased decree-holder again applied for execution in E. P. No. 98 of 1948.

The judgment-debtors contended that E. P. No. 111 of 1946 was not in accordance with law as the legal representatives of the deceased decree-holder had not been brought on record and that the subsequent E. P. No. 98 of 1948, not having been filed within three years from the date on which the decree had become final, it was barred by limitation. The District Munsiff accepted the judgment-debtors objection but on appeal, the District Judge held that E. P. No. 111 of 1946 was in accordance with law and that the subsequent Execution Petition No. 98 of 1948 was not, therefore, barred by limitation. The judgment-debtors have come up in revision against the said order.

3. Now, it is contended for the petitioners that whenever an application for execution is made by the legal representatives of a deceased decree-holder, the application must contain two prayers; one, for recognition, and the other, for execution; and any application which does not contain a specific prayer for recognition cannot be treated as one made in accordance with law.

4. An application for execution of a decree by a transferee, under an assignment in writing or by operation of law, is governed by O. 21 R. 16, Civil P. C. The provisions of the Code and the Limitation Act relating to execution should be substantially complied with before the application can be treated as made in accordance with law. The words "In accordance with law" mean in accordance with the law relating to execution.

5. Order 21 Rule 16, Civil P. C., so far as it is material for the present purpose, is as follows :

Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, 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 were made by such decree-holder;

"Provided that, where the decree or such interest as aforesaid has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution."

6. The provisions of Art. 182 (5), Limitation Act, may also be noticed :

Description of application. Period of limitation Time from which period begins to run

182. For the execution of a decree or order of any Civil Court not provided for by Art. 183 or by S. 48 of the Code of Civil Procedure, 1908. Three years; or where a certified copy of the decree or order has been registered six years. 5. Where the application next hereinafter mentioned has been made the date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step-in-aid of execution of the decree or order.

7. The principle of O. 21 R. 16 is that no one can execute a decree except the decree-holder or the person to whom the decree has been transferred by assignment in writing or by operation of law. The rule contemplates two cases of transfer : (1) by assignment in writing, and (2) by operation of law. If the transfer is by assignment in writing, then it is obligatory upon the Court to give notice of the application to the transferor and the judgment-debtor, and the decree cannot be executed until the Court has heard their objections (if any) to the execution. A transfer by operation of law means a transfer on death or by devolution or by succession.

The legal representative, who is a transferee by operation of law, has to make an application for execution under O. 21, R. 16. Order 21, Rule 16 which entitles a legal representative to apply for execution does not require an independent application for recognition as such. The rule only enjoins the transferee by operation of law to make (1) an application for execution (2) to the Court which passed the decree. If these two conditions are satisfied, the decree may be executed in the same manner and subject to the same conditions as if the application were made by the decree-holder.

8. Therefore, an application for execution by the legal representative of a deceased decree-holder under O. 21, R. 16, which does not contain a specific prayer for recognition, would nevertheless be an "application in accordance with law within the meaning of Art. 182 (5) of the Limitation Act and an order for substitution of names on the record is not a condition precedent to the legal representatives right to apply for execution.

9. In the earliest of the reported decisions, Ramachandra Aiyar v. Subramania Chettiar, 14 Mad LJ 393 (A), Mr. Justice Bhashyam Ayyangar had to consider the provisions of S. 232, Civil P. C., which corresponds to O. 21, R. 16 of the present Code. The learned Judge stated thus :

"There is no provision of law which requires the Court to recognise the validity of the transfer of a decree before the transferee can apply under S. 232, Civil P. C., to execute the decree. The only application which a transferee who, according to the definition of the term decree-holder is himself a decree-holder, can make is an application under S. 232, Civil P. C., for execution of the decree and he cannot make an application to the Court merely for recognising him as transferee of the decree.

10. It may be noted here that the definition of the word decree-holder in the Code of 1882 included a transferee of a decree as well. But, in the present Code, S. 2 (3) defines "decree-holder as a person in whose favour a decree has been passed or an order capable of execution has been made.

11. Alagiriswami Naidu v. Venkatachelapatti, Iyer, ILR 31 Mad 77 (B), a Division Bench of the Madras High Court considered the scope of S. 232 of the old Code. There the decree-holder having died, his widow who was not brought on the record, applied to execute the decree obtained by her deceased husband. The execution petition was dismissed. In a subsequent execution proceeding, the question arose as to whether the former application was in accordance with law. The learned Judges cited with approval a passage from an earlier unreported decision in Narayana Nayak v. Karuppa Pillai, Refd. Case No. 18 of 1880 (Mad) (C), which ran thus :

"The question is whether this last application was barred by Act XV of 1877, Art. 179, and this depends upon the determination of the question, whether the application made on 31-3-1880 by the decree-holders son, whose name was not then on the record was an application made in accordance with law for execution or to take some step-in-aid of execution.

We are of opinion that the application made on 31-3-1880 was an application made in accordance with law for execution. Ss. 365 and 366, Civil P. C., have reference to the death of a plaintiff before judgment and have no reference to the case of a decree-holder dying and his representative applying for execution. On the death of a decree-holder, the right to execute devolves by operation of law on his representative, and he may apply for execution under S. 232 of the Code.

It is proper, and perhaps necessary, that the name of the representative should be entered on the record in the place of that of the plaintiff or defendant whom he represents, but the Code does not make this a condition precedent to the attaching of the representatives right to apply for execution."

Following this decision and the decisions in Hafizuddin Chowdhry v. Abdool Aziz, ILR 20 Cal 755 (D), and Balkishan Shiwa Bakas v. Wagarsing, ILR 20 Bom 76 (E), which have taken the same view, the learned Judges held that the application by the widow was in accordance with law.

12. S. 50 which is the corresponding provision in the Code relating to the execution of a decree against the legal representatives of a deceased judgment-debtor, provides as follows :

"Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased."

13. The decision in Thirupathi Ayyangar v. Yegnammal, AIR 1933 Mad 568 (F), has arisen under S. 50. There the legal representative of a deceased judgment-debtor pleaded that a previous execution petition was not in accordance with law as it did not contain an express prayer for his addition as such. Following the decision in ILR 31 Mad 77 (B), Mr. Justice Pandalai expressed himself thus :

".....The Civil Procedure Code does not contemplate any specific application to bring on record the legal representative of the judgment-debtor though in ordinary practice such a prayer is usually added in an execution petition. It was probably this departure from practice which caused the return of the petition of 17-7-1926. But this cannot affect the legal validity of the petition if such an express prayer is not necessary.

14. We may here notice the decision in Narayanan Chetti v. Panchanathan Chettiar, ILR (1940) Mad 79 : (AIR 1940 Mad 89) (G), by the Division Bench of the Madras High Court consisting of Burn and Mockett, JJ. There the sole decree-holder died and his sons sought to continue the pending execution proceeding. It was contended for them that they were decree-holders who could execute the decree without recognition by the Court. The learned Judges held that the sons were not decree-holders as defined in S. 2, Civil P. C., that the decree had been transferred to them by operation of law on the death of their father and that O. 21, R. 16, was applicable. This case is no authority for the contention that before the legal representatives of a deceased decree-holder can execute the decree, they should apply for recognition. All that the case says is that O. 21, R. 16, is applicable to a case of devolution of a decree-holders interest by operation of law. We do not consider that there is any conflict between this decision and the earlier Bench decision in ILR 31 Mad 77 (B).

15. We may now refer to the decisions of other High Courts which have considered the precise scope of O. 21, R. 16. In Radha Nath Das v. Pradumna Kumar Sarkar, ILR (1939) 2 Cal 325 (H) Sen, J., held that under O. 21, R. 16, Civil P. C., the assignee of a decree cannot make two applications, one for recording the assignment and another for executing the decree. The learned Judge pointed out that there is no provision in the Code enabling the assignee of a decree to apply only for recording the assignment and that the notice and the entire proceedings under O. 21, R. 16 originate from an application for execution and that if there is no such application, the proceedings are without any foundation.

16. The learned Counsel for the petitioners then relied upon the following observations of a Bench of the Bombay High Court consisting of Leonard Stone, C. J., and Chagla, J. in Kirtilal Jivabhai v. Chunilal Manilal, ILR (1946) Bom 234 at p. 242 : (AIR 1946 Bom 27 at p. 30) (I).

"It is true that O. 21, R. 16 does not require that on an application for execution under that rule the Court should pass an order declaring that the applicant is the transferee of the decree. But, in our opinion, it is desirable that ordinarily such an order should be made on an application under O. 21, R. 16."

The learned Judges pointed out that an application by the legal representative for recognition is not contemplated by O. 21, R. 16 but that as a matter of practice, it is desirable that such an order should be made before the execution proceeds.

17. When an application is made by a transferee by assignment or by operation of law, the rule as such does not require that there should be a prayer for recognition of the transfer. The Court to which the application is made might require the applicant to adduce proof that he is a transferee of the interest of the decree-holder; and if the Court is satisfied that he is a lawful transferee, execution shall proceed. The judgment-debtor might raise objections about the locus standi of the applicant to execute the decree in which case the Court would consider the objections so raised and if it is eventually found that the person who has applied for execution is not a transferee of the decree-holders interest, the execution petition would be dismissed. Otherwise, execution would proceed.

18. For the reasons stated above, the answer to the question referred to the Full Bench must be in the affirmative.

Answer accordingly.