1. This is a petition to revise the order of the Subordinate Judge of Tanjore recognizing the assignment of the decree in favour of the petitioner in the lower Court.
2. The contention of Mr. Ramaswami Aiyar for the petitioner is that it was not competent for the assignee decree-holder to make the application he did to the Court executing the decree. The decree was passed on 12th April 1915, by the Subordinate Judge's Court, Tanjore. It was transferred for execution to the District Munsifs Court of Tanjore by an application dated 18th July 1916. The assignee decree-holder applied to the District Munsifs Court on 10th February 1920 for the issue of notice to the defendant under O. 21, R. 22 and asked “that the records may be transferred along with the certificate to the Subordinate Judge's Court, Tanjore, for the purpose of further conducting the suit.” In it he also stated that the decree had been transferred to him by assignment. The question is who the this is an application which it is competent for the assignee decree-holder to make. If he was competent to make the application it would be a step in and of execution under Article 182(5) of the Limitation Act. It is well settled that an assignee decree-holder can apply only to the Court which passed the decree for being recognized as the assignee of the decree and it is also settled that he cannot make an application only for the purpose of being recognized as an assignee decree-holder. His application must be one for execution and, therefore, if he does not apply for execution, his application would not be considered to be a proper application. In this case he asked that the records be sent to the other Court for the further conduct of what he calls a suit and I suppose he meant by it for the execution of the decree. It has been held in Krishnayyar v. Venkayar(1) that if a decree-holder applies to the executing Court to send, the records to the Court which passed the decree, that application is a step-in-aid of execution and saves limitation. Whether a transferee decree-holder can make a similar application is the question. In order that his claim as assignee decree-holder may be recognized, it is necessary that the papers should he sent back to the Court which passed the decree. It is admitted that the assignee decree-holder was subsequently recognized to have got a proper assignment of the decree by the Subordinate Judge's Court, Tanjore, which passed the decree. In order to get that relief his application to the executing Court to send back the papers to that Court is a competent one. I think, in order to enable the Court which passed the decree to recognize him as the assignee decree-holder, it was necessary for that Court to have the records sent up by the executing Court and an application for that purpose, I think, comes within the expression of “step-in-aid of execution.” In this case, the application was not by assignee decree-holder for execution to the executing Court which no doubt he was incompetent to make till his assignment was recognized. But in order that the Court which passed the decree may pass an order under O. 21, R. 16, it was necessary, though it might not be so in every case, at least in this case that the papers should have been sent back, I hold, therefore, that this application was a proper one which the assignee decree-holder was competent to make. In this connexion I would like to refer to the case reported in. Monorathdas v. Ambika Kanta Bose(2). In that case an application which was made by a person who got a title to a decree by operation of law, and who made an application before the Court which passed the decree recognized him as being entitled to execute the decree, was a proper application. In this view of the case I think the order of the lower Court is correct, and this petition is dismissed with costs.
3. Petition dismissed.