Order 21۔ rule 16
P L D 1963 Dacca 197
Before Hasan, J
RAJA KUMAR SIL‑--Appellant
versus
ABUL HASNAT CHOUDHURY AND ANOTHER
Respondents
Second Miscellaneous Appeal decided on 27th February 1962.
Civil Procedure Code (V of 1908), O. XXI, r. 16‑Applica tion‑Transfer of interest in decree must be in writing or by operation of law.
Jugulkishore v. Messrs Raw Cotton Co. A I R 1955 S C 576 and Bon Behary Roy v. Dhirendra Nath 3 D L R 285 ref.
Abu Bakkar for Appellant.
Nasiruddin Chowdhury for Respondent No. 1.
JUDGMENT
One Pramada Bala Kar instituted Money Suit No. 17 of 1954? against the appellant (judgment‑debtor). Thereafter she sold the tenanted lands along with the arrears of rent and other lands to one Hriday Ranjan Kar on 1st November 1954, vide Exh. A(1) for a valuable consideration. In this document a statement was made along with the statement as to conveyance of arrears of rent that Money Suit No. 17 of 1954, was pending against the tenants in which the purchaser would be in a position to join the seller as a co‑plaintiff or as a plaintiff on substitution and that the purchaser may also execute the decree if the purchaser did not have him added as a co‑plaintiff or substituted in place of the plaintiff (the vendor). The decree in the Money Suit No. 17 of 1954, was passed on 30th March 1955, which was not put into execution either by Pramada Bala Kar or her vendee Hriday Ranjan Kar. Hriday Ranjan Kar sold his right, title and interest on 22nd February 1956, (Exh. A) acquired by him by virtue of Exh. A(1) to Abul Hasnat Choudhury and another, the respondents in this appeal, who, in their turn, put the decree passed in the Money Suit No. 17 of 1954, into execution on which Money Execution No. 16 of 1958, was started. In view of the provision of Order XXI, rule 16 of the Code of Civil Procedure notices were served both on the decree holder as well as on the judgment‑debtor and the execution at the instance of the present purchasers from Hriday Ranjan Kar was opposed on the ground, that neither Hriday Ranjan nor the present persons alleged to have purchased from Hriday Ranjan were the transferees within the meaning of Order XXI, rule 16 of the Code of Civil Procedure which runs as follows:
"Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree holder in the 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 same conditions as if the application were made by such decree holder."
On the aforesaid provision of the law the two Courts below have taken two different views. The trial Court relying on the case of Mathurapur Zemindary Co. Ltd. v. bhasaram Mandal and athers (28 C W N 626), held that there was no transfer by Pramada Bala Kar the decree‑holder either to Hriday Ranjan or to the purchasers from Hriday Ranjan as contemplated by rule 16 of Order XXI which requires that the assignment must be in writing or by operation of law and as when the kabala was executed by Pramada Bala Kar on 1st of November 1954, there was no decree in existence inasmuch as the decree was passed on the 30th March 1955, while on the other hand the lower Appellate Court held that there was an assignment of the decree by Pramada Bala Kar in favour of Hriday Ranjan Kar. In the present appeal the soundness of the view taken by the lower Appellate Court has been questioned.
2. It is the cardinal principle of law that literary and dictionary meaning to be given to the provisions of the Statutes without violation. A mere reading of rule 16 of Order XXI of the Code of Civil Procedure goes to show that an assignment of a decree which can be put into execution by the transferee must be in writing or by operation of law. On this, attempts have been made in some High Courts to give relief in certain cases when it is possible. Hence there is divergence of opinions in different High Courts of India and elsewhere.
3. In the case of Jugalkishore Saraf v. Messrs Raw Cotton Co. Ltd. (A I R 1955 S C 676), S. R. Das, J., observed as follows: --‑
"Suffice it to say that there is no warrant for confining transfers by operation of law to transfers by operation of statutory laws. When a Hindu or a Muhammadan dies intestate and his heirs succeed to his estate there is a transfer not by any statute but by the operation of their respective personal law. In order to constitute a transfer of property by operation of law, all that is necessary is that there must be a passing of one person's rights in property to another person by the force of some law, statutory or otherwise.
Reference has already been made to the case of Purmanandas Jivandas v. Yallabdas Walliji, were, by applying the equitable principle Sargent, C. J.; upheld the appellant's right to maintain the application for execution. In the beginning the learned Chief Justice ounded his decision on the ground that the appellant had become the transferee of the decree by operation of law'. This view appears to me to be logical, for it was by the operation of the equitable principle that the right, title and interest of the transferor in the after‑acquired decree became the property of the appellant. In other words it was equity which operated on the decree as soon as it was passed and passed the interest of the decree‑holder to the appellant.
It is difficult to appreciate the implication of the first proposi tion. When on a true construction of the deed it actually operates to transfer a decree then in existence, no equitable principle need be invoked, for in that case the transfer is by the deed itself and as such is by an assignment in writing. It is only when the deed does not effectively transfer the decree because, for instance, the decree is not then in existence; but constitutes only an agreement to transfer the decree after it is passed that the invocation of the equitable principles becomes ' necessary and it is in those circumstances that equity fastens and operates upon the decree when it is passed and effects a transfer of it."
Bhagwati, J., observed as follows:‑
"A judgment‑debt or decree is not an actionable claim for no action is necessary to realise it. It has already been the subject of an action and is secured by the decree. A decree to be passed in future also does not come as such within the definition of an actionable claim and an assignment or transfer thereof need not be effected in the manner prescribed by section 130, Transfer of Property Act . . . . . .
The assignment in writing of the decree to be passed would thus result in a contract to assign which would become a complete equitable assignment on the decree being passed and would fulfil the requirements of Order XXI, rule 16 in so far as the assignment or the transfer of the decree would in that event be effectuated by an assignment in writing which became a complete equitable assignment of the decree when passed. There is nothing in the provisions of the Civil Procedure Code or any other law which prevents the operation of this equitable principle and in working out the rights and liabilities of the transferee of a decree on the one hand and the decree‑holder and the judgment‑debtor on the other, there is no warrant for reading the words `where a decree . . . . . . is transferred by assignment in writing in the strict and narrow sense in which they have been read by the High Court of Madras . . . . .There could be no objection to decide questions involving investigation of complicated facts or difficult questions of law in execution proceedings, as section 47, Civil P. C., authorises the Court executing the decree to decide all questions arising therein and relating to execution of the decree and sub section (2) further authorises the executing Court to treat a proceeding under the section as a suit thus obviating the necessity of filing a separate suit for the determination of the same."
4. In the aforesaid case there was a contract to convey a decree that was to be obtained which was later on obtained and the persons in whose favour the contract was made applied for execution of the decree which was allowed.
5. In the present case before me from the recital in Exh. A (1) it appears that Pramada Bala Kar conveyed her right, title and interest in respect of all the arrears of rent for which the Money Suit No. 17 of 1954, was pending against the judgment debtor.
It was further stipulated that the purchaser Hriday Ranjan would be in a position to join the suit as a co‑plaintiff or be substituted in place of the plaintiff. If none was done, he would be in a position to put the decree when it is obtained into execution. So from this recital it appears to me that all right, title and interest that Pramada Bala Kar had in the arrears of rent was conveyed to the purchaser Hriday Ranjan, thereby also all her right in the decree to be obtained by Hriday Ranjan was transferred. In other words there was not a contract between Pramada Bala Kar and Hriday Ranjan for transfer of a future decree but in fact decree was the conveyed. After the decree was passed on 30‑3‑55, Hriday Ranjan cold to the present respondents his absolute right in the decree and other properties vide Exh. A on the 27th February 1956. In this document the decree has been specifically mentioned. 6. The learned Advocate for the appellant has relied on the case of Bon Behary Roy v. Dhirendra Nath Roy ((1951) 3 D L R 285), in support of his contention that unless an assignment be in writing or by operation of law, provision of rule 16 of Order XXI has no application. I have gone through the decision. It is a decision by a Division Bench of this Court. It does not appear from the judgment that this point was directly involved in that case and it does not further appear that any reasons were assigned for, coming to such a decision. Furthermore, in the facts and circumstances stated above there was in fact sale of the decree in writing in the present case. Hence the said decision has no bearing on the case before me. In my opinion, the application for execution at the instance of the present purchasers from Hriday Ranjan is maintainable and is not hit by Order XXI rule 16 of the Code of Civil Procedure.
The appeal is accordingly dismissed without any order as to costs.
Leave under clause 15 of the Letters Patent is granted.
S. B./A. H.
Appeal dismissed.
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