Mahadeo Baburao Halb... v. Anandrao Shankarrao ...

Rangnekar, J.:—

The principal question in this appeal is whether the respondent has a locus standi to apply for executing a decree obtained by one Rangubai against the appellant in suit No. 162 of 1922; and this turns upon the construction of Order XXI, rule 16, of the Civil Procedure Code.

One Ganpat died leaving a son Shankarrao and a widow Rangubai. After the death of Shankarrao his widow Parvatibai adopted the respondent in 1917. The respondent was born on April 10, 1908. It appears that after Shankarrao's death Rangubai took possession of the property left by Ganpat and was managing the same. In 1920 the respondent brought a suit against Rangubai for a declaration that he was validly adopted by Parvatibai and was entitled to the whole of the property left by Ganpat. This was suit No. 422 of 1920. In that suit Rangubai challenged the respondent's adoption and raised other defences. The suit resulted in a decree in favour of the respondent who was declared to have been Validly adopted by Parvati to her husband Shankarrao and entitled to all the property of Ganpat. The decree is not on record but the material portion is set out in the judgments of the lower Courts and is as follows: “The plaintiff do take possession of all the immoveable properties in suit and also of such moveables, Page: 515cash, bonds, etc., as may be with the defendants excepting their own Stridhan,” etc. The second defendant to the suit was a co-widow of Rangubai, but we are not concerned with her in this case. It appears that before this decree came to be made and during the pendency of the suit Rangubai had filed a suit, being suit No. 162 of 1922, against two persons on a money claim and obtained a decree which was made payable by annual instalments of Rs. 100. The decree was passed on June 17, 1922. In execution of the decree Rangubai received the first instalment. The respondent applied to execute his decree, and it appears, although there is no finding on the point in the judgment of the Appellate Court, that in the proceedings Rangubai produced amongst other documents a copy of the decree obtained by her in suit No. 162 of 1922. Thereafter the respondent applied to execute the decree in favour of Rangubai against the appellant who was 2nd defendant in Rangubai's suit. In his Miscellaneous Application under Order XXI, rule 11, the respondent after giving the number of the suit and the names of the parties stated in the first column that he was the proprietor of the decree. It is difficult to see how the respondent became the proprietor of the decree by reason of a mere production of a copy of Rangubai's decree in proceedings taken in execution of his own decree in suit No. 422 of 1920. That decree did not declare him to be the owner of this decree, nor of the debt in respect of which the decree was passed in favour of Rangubai.

The application was opposed by the appellant mainly on the ground that it was barred by the law of limitation. Both the lower Courts held that by reason of the minority of the respondent the application was in time.

The appellant in this Court contends that this decision is wrong, and he further contends, as far as I can see for Page: 516the first time, that the respondent had no locus standi to execute the decree as he was not a transferee of the decree under an assignment in writing or by operation of law.

Order XXI, rule 16, regulates the procedure to be followed in a case where the interest of the decree-holder is vested in a person other than the decree-holder. It runs as follows:—

“Where a 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 said conditions as if the application were made by such decree-holder: Provided …”

It is clear on the record in this case that there was no assignment in writing. Mr. Dixit, however, contends that the respondent became a transferee of the decree by operation of law. He says that by reason of the fact that the decree passed in suit No. 422 of 1920 in favour of the respondent ordering Rangubai to deliver the property belonging to Ganpat and the further fact that in execution of that decree amongst other things a copy of the decree of June 17, 1922, was produced by Rangubai, the respondent became a transferee by operation of law. In the first place there was no evidence before the Courts below as to why and how this decree was produced or whether it was delivered to the respondent, and there is nothing about this in the judgment of the Appellate Court. It is mentioned in the judgment of the Court of first instance, however, that a copy of the decree was produced in the proceedings which took place in the execution of the respondent's decree in his suit. Then there is the further fact that there is nothing to show that the monies or the debt in respect of which the decree was obtained by Rangubai was a part of the estate of Ganpat. For ought one knows it may be her Stridhan and the Page: 517production may be the result of a mistake or misapprehension or carelessness. In fact neither of the Court has gone into this question and the parties have not, as far as I can see, led any evidence about it. It is a significant fact that the decree in favour of Rangubai was made in 1922 and the debt in respect of which it is passed was not mentioned in the list of properties given in suit No. 422 of 1920, and the decree in this suit as it stands does not specifically refer to the decree of Rangubai. Assuming, however, that a copy of the decree was produced in the case of proceedings taken to carry out the decree in suit No. 422 of 1920, the question is whether such production could make the respondent a transferee of the decree of 1922 “by operation of law” within the meaning of Order XXI, rule 16. Apart from the facts which I have mentioned the question is, what is the meaning of the expression “by operation of law.” In my opinion, according to the natural meaning of the words a transfer by operation of law means a transfer on the death or by devolution or by succession, and a transferee by operation of law would be a legal representative of the deceased decree-holder, or the person in whom the interest of the decree-holder has become vested under a statute, e.g the Official Assignee of an insolvent under the Presidency-towns Insolvency Act, or the purchaser at a Court sale in execution of a decree. No case has been cited bearing on the point in this appeal, but I am supported in the view that I am taking by the observations of the Privy Council in the case of Abidunnissa Khatoon v. Amirunnissa Khatoon, (1876) 2 Cal. 327, p.c a case under section 208 of the Civil Procedure Code of 1859, which was to the same effect as Order XXI, rule 16, of the present Code. In that case it was observed at page 333 as follows:—

“Then we come to section 208, which, undoubtedly is a section relating to proceedings for execution, and after judgment and decree. It is to this effect:—‘If a decree shall be transferred by assignment or by operation of law from the original decree-holder to any other person, application for the execution of the decree may be made Page: 518by the person to whom it shall have been so transferred, or his pleader; and if the Court shall think proper to grant such application, the decree may be executed in the same manner as if the application were made by the original decree-holder.’ It appears to their Lordships, in the first place, that, assuming Wajed to have the interest asserted, the decree was not, in the terms of this section, transferred to him, either by assignment, which is not pretended, or by operation of law, from the original decree-holder. No incident had occurred on which the law could operate to transfer any estate from his mother to him. There had been no death; there had been no devolution; there had been no succession. His mother retained what right she had; that right was not transferred to him; if he had a right, it was derived from his father it appears to their Lordships, therefore, that he is not a transferee of a decree within the terms of this section.”

The only course open to the respondent was either to apply in execution of his own decree for the appointment of a receiver of Rangubai's decree or to follow the procedure laid down in Order XXI, rule 53, if it was contended that the decree in favour of the respondent gave him the right to proceed in accordance with that rule. Instead of doing this, he proceeded straightway to execute Rangubai's decree as if he was the proprietor of it and this he could not do as there was no assignment of the decree in writing in his favour, nor, in my opinion, was he a transferee by operation of law. In my opinion, therefore, the respondent had no locus standi to apply in execution of Rangubai's decree, and the Court had no jurisdiction to order execution to issue in his favour.

In this view it is not necessary to go into the question of limitation.

I would, therefore, allow the appeal and reverse the order made by the lower Courts. Respondent to pay the costs of this appeal. Each party to bear his own costs in the Courts below.

Appeal allowed.

Y.V.D