1. This is an execution, second appeal by the judgment-debtor arising out of a suit for sale. After the preliminary decree for sale was passed one of the judgment-debtors, Duli Chand, died. An objection was raised on behalf of the other judgment debtors that his heirs not having been brought on the record within three months the suit had abated. This objection was overruled and a final decree was passed on the 8th of April, 1922. The surviving judgment-debtors appealed to the lower Appellate Court. While that appeal was pending the decree-holder Babu Ram on the 7th of October, 1922, assigned his rights and interests in the decree to Raghubar Dayal, Raghubar Dayal made no attempt to have his name brought on.' the record in the appeal The decree-holder alone contested it. The lower Appellate Court decreed the appeal against the decree-holder and presumably modified it so far as the deceased judgment-debtor was concerned. The decree-holder preferred a second appeal to the High Court which was ultimately allowed and on the 20th of February, 1925, the final decree in the form in which it had been passed by the trial Court was restored. Raghubar Dayal bad not been made a party either in the appeal before the lower Appellate Court or in the second appeal in the High Court.
2. On the 13th of March, 1926, Raghubar. Dayal applied to execute the decree and was met with the objection that his application was barred by time. Both the Courts below have held in favour of the decree-holder and have allowed the application.
3. It seems to me that the application cannot be held to be barred by time. No doubt, when the decree was assigned to Raghubar Dayal in October, 1922, he might have applied to have his name brought on the record in the appeal or even ignoring the appeal he might have applied for execution of the original decree. But after the decree was modified by the lower Appellate Court it would have been difficult for him to apply to execute the decree in its original form.
4. After the interest of the decree-holder in a decree which is the subject-matter of an appeal has been assigned to a third party it is not absolutely necessary for the assignee to have his name brought on the record in place of the decree-holder if he is satisfied that his rights will be sufficiently protected by his assignor. The language of Order XXII Rule 10 (1), of the Code of Civil Procedure itself indicates that it is only by the leave of the Court that the proceedings can be continued by or against the person to or upon whom the interest has devolved. Similarly Order XXI, Rule 16 of the Code of Civil Procedure would also indicate that it is open to the transferee to apply for the execution of the decree. The Limitation Act prescribes no special period for an application by a transferee of the decree to be brought on the record: Rajani Kanta Roy v. Jyoti Prosad Singh Deo 75 Ind. Cas. 255 : 27 C.W.N. 710 : A.I.R 1924 Cal. 90. In the absence of his name, the proceedings can be continued as before by the decree-holder in spite of the assignment. If the decree which has been transferred is ultimately upheld the assignee is entitled to claim the benefit of it. It is quite clear that it is the decree which is ultimately passed in the suit which is the final decree in the case and in which the original Court's decree comes to be merged. An assignee of the decree-holder cannot be treated as a perfect stranger but must be deemed to be fully represented through the decree-holder. It is also clear that while an appeal is pending the rights of the judgment debtor-appellant cannot be prejudiced by the mere fact that the respondent to the decree has chosen to transfer his rights and interests in the decree during the pendency of the appeal. Even though Section 52 of the Transfer of Property Act would not apply to the case of the transfer of a decree which is not an immoveable property, the principle underlying that section would, in my opinion, be applicable and the mere fact that an assignment has been made would not prevent the decree-holder from prosecuting the proceedings till its final conclusion.
5. This view finds support from the case of M. Ponnusami Pillai v. Chidambaram Chettiar 44 Ind. Cas. 849 : (1918) M.W.N. 194 : 23 M.L.T. 213 : 7 L.W. 566 : 35 M.L.J. 294 where it was pointed out that an assignment of a decree is really an assignment of the interest of the decree-holder in the decree as may be finally determined. The only feature which distinguishes the present case from that case is that there the assignee of the decree had actually been brought upon the record in the appeal.
6. I would, therefore, dismiss this appeal.
Sen, J.
7. I concur. In view of the fact that the point raised in this appeal is not covered by any clear authority I should like to add a few words.
8. On the 4th of August, 1917, a preliminary decree was obtained against a number of persons including one Dali Chand. Duli Chand died and no application was made for the substitution of his heirs on the record within the statutory period. Sometime before April, 1922, an application was made for the preparation of a final decree. This application was resisted on the ground that the decree holder had lost his right to a final decree by reason of Duli Chand'a legal representatives not having been brought on the record within three months of the date of Dali Chand's death. This plea was overruled by the final Court and a final decree for sale was passed on the 8th of April, 1922. The judgment-debtor appealed. During the pendency of the appeal, the decree-holder on or about the 7th of October, 1922, assigned the decree to Raghubar Dayal, the respondent. On the 8th of November, 1922, the appeal was decreed. We have not got the copy of the ' order passed by the lower Appellate Court but presumably the order was to the effect that the suit had abated in part qua the legal representatives of the deceased judgment-debtor Duli Chand. The decree holder appealed to this Court. On the 20th of February, 1925, the appeal was allowed and the decree of the trial Court was restored,
9. Raghubar Dayal, the assignee of the decree was not a party to any of the proceedings which have been referred to above.
10. On the 13th of March, 1926, Raghubar Dayal applied for the execution of the decree, and was met with the plea that the application was barred by time. This plea has been overruled by both the Courts below.
11. In order to appreciate the point of limitation raised in this appeal, we have got to consider the scope and legal effect of the assignment of the decree in favour of Raghubar Dayal of the 7th of October, 1922. What was transferred was not the decree itself but the interest of the decree holder. This interest had not become statute-barred. Under Order XXII, Rule 10 of the Code of Civil Procedure the assignee was not bound to apply for the substitution of his name in the decree and the language of Order XXII, Rule 10, Clause (1) of the Code of Civil Procedure is indicative of the fact that the original decree-holder might continue the proceedings for the benefit of himself or any other person, on whom the interest has devolved by substitution or by assignment. No special or fixed period of. limitation has been prescribed in the Indian Limitation Act for the substitution of names in favour of the assignee. This fact also would suggest that the original decree-holder was entitled to continue the proceedings for the benefit of himself and his assignee. Between the 8th of November, 1922, and the 20th of February, 1925, there was no decree capable of execution. It was not till by the order of this Court that the original decree dated the 8th of April, 1922, was restored and revived. It is an elementary principle of law that time cannot run against the person who is incapable of acting, It is unnecessary to invoke the aid of Section 52 of the Transfer of Property Act but I am in agreement with my learned colleague that the principle underlying the said section would suggest that the assignee is under the circumstances protected and is entitled to claim the benefit of the decree which was eventually restored by this order of the Court dated the 20th of February, 1925, I would, therefore, dismiss the appeal.
12. By the Court,-The appeal is dismissed with costs including in this Court fees on the higher scale.