Vythinatha Padayachi v. Ammalu Ammal And Another

The question involved in this appeal is the interpretation of the expression ‘in accordance with law’ in Art. 182(5) of the Limitation Act. The appellant is the transferee of the decree in O.S No. 1239 of 1926 and in February 1936 applied to execute it. He had previously applied in November 1934, and the learned District Judge of South Arcot has held that previous application was not in accordance with law and accordingly dismissed the present application as barred by limitation. The reason given by the learned District Judge is that in 1934 appellant had no right to apply in execution as the deed of transfer which he then filed was unregistered and incapable therefore of effecting any transfer. Against this decision appellant appeals.

The decree in question was a mortgage decree and it is not of course, contended for the appellant that in 1934 he did in fact possess any legal title to his ownership. The argument in appeal is that the requirements of O. 21, R. 16 are satisfied by a mere ‘assignment in writing’ and in support of it I have been referred to a number of rulings.

I may say at once that none of the rulings cited really covers the point at issue. It is true, no doubt, that in order for an application to be in accordance with law it is not necessary for it to be successful: Adhar Chandra Dass v. Lal Mohun Das (1). It may be dismissed for a variety of reasons: Bando Krishna v. Narasimha (2), Subramania Desika v. Rangaswami Chettiar (3), and Nandamani Ananga Bhima Deo v. Modona Mahono Deo (4). But none of these four cases in any way affects the competence of the petitioner, to make his application. In Dayalbhai Ramji v. Dayabhai Dulachand (5) it was held that a transferee's application was in accordance with law even though the Court had not in fact recognised the validity of his transfer, but here again no question arose as to the transferee's status as such. The only cases which appear at first sight to support appellant's contention are Arasappan v. Pulugasary (6) and Rajitagiripathy v. Bhavni Sankaram (7). Both these cases, however, deal with applications accompanied by a valid deed of transfer, in which it was held that the transferee's rights to the decree must give way before the rights of third parties; in Arasappan v. Pulugasary , the sons of the transferee to whom he had previously executed a deed of relinquishment; in Kalepalli Rajitagiripathy…(First ), v. Kalepalli Bhavani Sankaram…(Petitioner); , a creditor who had attached the transferred decree. Though these facts would entail the dismissal of any application by a transferee they would not present any legal obstacle to his filing an application.

It seems clear then, that the appellant can find no real assistance in the rulings on which he relies, and I can see no legal principle for holding that the learned District Judge was wrong. The question is really very simple. O. 21, R. 16 contemplates transfer of the decree-holder's interest in a decree. In the case of a mortgage decree such a transfer can be effected only by a registered instrument. If an instrument is not registered, no matter what its terms may be, it cannot effect a transfer. There is therefore in this case no transfer, and no transferee, and the only person with any title to execute the decree is the original decree-holder. An application filed on the assertion that a transfer has been effected when in fact no transfer has been effected cannot be an application in accordance with law. Appellant's learned Advocate was himself prepared to concede that an application by a petitioner who, e.g, personates a decree-holder or presents a forged transfer deed is not in accordance with law and the only reason why this is so must be because he is not competent to apply. In the present case the appellant in 1934 was neither the original decree-holder nor a transferee of his interest in the decree, and therefore the Civil Procedure Code gives him no right, and his application is obviously not in accordance with law.

The appeal is dismissed with costs.

Leave refused.

Appeal dismissed.

N.R.R