Wort, J.:— The only question in this case is whether the application to execute a certain decree, which application was taken out in the year 1935, was barred by limitation. This depended on the question whether a previous application was a step-in-aid of execution. So far as it is necessary to state the facts, the position is that the father of the present applicant obtained a decree for rent. Subsequently an application was made by one of the brothers of the present petitioner-appellant against one Saran Singh, one of the judgment-debtors. After that a second application was made by one other of the brothers against another of the judgment-debtors, namely, Azim Ehan; and it will be seen by the observations which I shall make that one of the main questions, if not the only question in the case, is whether that application was in accordance with law. A third application, that is, the application with which we are dealing in this case, was made by Akhori Ramsewak Prasad; the parties to this application were the same parties as those to the first application.
2. Now, prior to these applications, and indeed prior to the obtaining of the decree by the father, there had been admittedly certain events which brought about disruption in the family, the father having separated from his sons. Certain proceedings in the nature of an arbitration were taken by the parties for the purpose of dividing the property by metes and bounds, but those proceedings became abortive. I purposely avoid mentioning any details with regard to those proceedings as it is not necessary for the purposes of the argument in this case to do so. Then further proceedings of a similar character were taken which were likewise abortive. Then, it became necessary for one of the brothers to bring a regular action in partition. The properties were eventually divided by metes and bounds by the arbitrators and their award was made the subject matter of a decree.
3. Those are shortly the facts in this case, and it was contended successfully in the Court below, and the contention is again made in this Court, that the present application is barred by limitation by reason of the fact that the second application was made on 10th October 1931 whereas this application was made at a period of more than three years after the second application to which I have already made reference. I do not think there can be any dispute that the actual date which is to be treated as the date of the second application is 10th November 1932 by reason of the fact that certain claim proceedings were brought and were finally allowed and the execution proceedings dismissed. Taking it from that date, the present application, it is conceded, is within three years. The question is whether the proceedings in the claim case which gave rise to the dismissal of the execution proceedings, a fact to which I have already referred, were in accordance with law. Without dealing with unnecessary contentions and arguments the whole matter resolves itself into one question, viz., whether it was necessary in the circumstances of the case to comply with O. 21, R. 16 of the CPC. O. 21, R. 16 deals with that class of case in which there has been a decree jointly in favour of two or more persons and the interest of one has been transferred by assignment in writing or by operation of law. The Proviso to that Rule is important. Under this Proviso in certain circumstances it becomes necessary to allow certain objection to be raised if desired.
4. It is contended by Mr. Sarju Prasad on behalf of the respondents that not only did O. 21, R. 16 apply but notices required under O. 21, R. 16 were not given, and consequently the second application as I have described it was not in accordance with law and that threw the decree holder or the person making an application for execution back upon the first application made in execution which was clearly beyond the period of limitation.
5. It is contended by the Advocate-General on the other hand on behalf of the appellant that this is not a case falling within O. 21, R. 16 but one under O. 21, R. 10. That is to say, although the present applicant is not a decree-holder, he is holder of a decree within the meaning of R. 10 of O. 21. That there is an intermediate position between a decree-holder and a person who is an assignee under assignment in writing is clearly indicated by O. 21, R. 16 itself, as it deals with those cases in which there has been an assignment by operation of law and, as pointed out by the learned Advocate-General, it is only in cases where there is an assignment in writing that notices required by O. 21, R. 16 are necessary. Now, I do not think it can be seriously contended, although I believe Mr. Sarju Prasad at one moment did contend, that there was an assignment in writing. I think it must be conceded that there was not an assignment in writing.
6. To recapitulate the facts, there were the arbitration proceedings and then the decree was founded upon the award. That was not an assignment in writing. An assignment in writing takes place by the act of the parties themselves although it may be true that there would have been no decree even though the parties took some action. That gives us a, very different position from what arises under an assignment in writing to use the words of the Order we are considering. It was contended by Mr. Sarju Prasad on behalf of the respondents that this was a case of transfer by operation of law whereas as a matter of fact it really does not matter for the purposes of the appellant's case whether it was or not, as it is pointed out and is quite clear from a plain reading of the Order itself that it is only in the case of an assignment in writing that notices are necessary, and it could not be said, even though it was a transfer by operation of law that there has been non-compliance with the Rules and Orders which would make the second application not in accordance with law.
7. Shortly stated, in my judgment the position is this. The decree when it was obtained was clearly a decree of the joint family which would in the ordinary course of events be partitioned by metes and bounds.
8. The fact that the arbitrators omitted in their award to deal with this decree is neither here nor there; it makes no difference to the rights of the parties. They were under the impression possibly that the decree was in the names of the sons; again I say that makes' no difference. The fact that the decree was obtained after the disruption of the family seems to have influenced the learned Judge in favour of the judgment-debtor; again that is irrelevant. The question that had to be considered was not whether the action was brought after the disruption of the family, but whether the debt which was the basis of the action was due to the joint family, and of that there could be no possible dispute or doubt.
9. There is one observation in one of the judgments with which we are dealing (I think the judgment of the Appellate Court) that there is nothing to show that this decree was a separate property. The learned Judge was clearly in error on that point. If this or any like contention was raised by any one, the burden would be upon him to establish that fact and the absence of evidence to show that it was not separate property, of course, would not meet the point. In my judgment, the decision of the learned Judge in the Court below was clearly wrong. This was a case in which the parties could come forward and say that they had an interest in the decree; that it was their property;, that they were holders of the decree; and that the second application was therefore an application in accordance with law. That being so and as that application was dismissed within a period of three years from the date upon which this application was made, this application is clearly within time and is not barred by limitation contrary to the decision of the learned Judge in the Court below.
10. In my opinion the appeal must be allowed, the judgment of the lower Appellate Court must be set aside and the judgment of the trial Court restored with necessary consequences including costs.
Varma, J.:— I agree.
K.B/R.K
11. Appeal allowed.